§40.307 What is the SAP’s function in prescribing the employee’s follow-up tests?

Question 1: May an employer conduct follow-up testing under company authority that goes beyond the follow-up testing which the SAP determines necessary?

Answer:

• No. The regulation (at 40.307(d)(4)) and SAP guidelines state that employers must not impose additional testing requirements that go beyond the SAP’s follow-up testing plan. This includes additional testing requirements under company authority.
• In addition to follow-up testing and random testing, an employer has other means available to ascertain an employee’s alcohol- and drug-free performance and functions.
  • The employer can choose to monitor the employee’s compliance with the SAP’s recommendations for continuing treatment and/or education as part of a return-to-duty agreement with the employee.
  • The employer can conduct reasonable suspicion testing if the employee exhibits signs and symptoms of drug or alcohol use.
  • The employer can meet regularly with the employee to discuss the employee’s continuing sobriety and drug-free status.
• The Department is not opposed to an employer discussing his or her desires for having more than the minimum rule requirement (i.e., 6 tests in the first year) for follow-up testing with SAPs they intend to utilize.

Question 2: Employment Change Prior to Completion of Follow-up Testing: Can a driver who tested positive and completed the return-to-duty process change employers before the follow-up testing is completed?

Answer: Yes, but the new employer must immediately resume the follow-up testing requirements prescribed by the substance abuse professional (SAP) [§40.307(e)]