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§ 40.281 Who is Qualified to Act as a SAP?

Cross Reference

Link to an amendment published at 88 FR 27649, May 2, 2023.

To be permitted to act as a SAP in the DOT drug and alcohol testing program, you must meet each of the requirements of this section:

(a) Credentials

You must have one of the following credentials:

(1) Licensed physician (Doctor of Medicine or Osteopathy);
(2) Licensed or certified social worker;
(3) Licensed or certified psychologist;
(4) Licensed or certified employee assistance professional;
(5) State-licensed or certified marriage and family therapist; or
(6) Drug and alcohol counselor certified by an organization listed at https://www.transportation.gov/odapc/sap.

(b) Basic Knowledge

You must be knowledgeable in the following areas:

(1) Diagnosis and treatment of alcohol and controlled substances-related disorders.
(2) SAP function as it relates to employer interests in safety-sensitive duties.
(3) DOT agency regulations, DOT SAP Guidelines, and this part. You must keep current on all changes and subscribe to the ODAPC list-serve at https://www.transportation.gov/odapc/get-odapc-email-updates.

Materials are available from ODAPC (Department of Transportation, 1200 New Jersey Avenue SE., Washington DC 20590 (202–366–3784)) or at http://www.transportation.gov/odapc.

(c) Qualification Training

You must receive qualification training meeting the requirements of this paragraph (c).

(1) Qualification training must provide instruction on the following subjects:
- (i) Background, rationale, and coverage of the Department’s drug and alcohol testing program;
- (ii) 49 CFR Part 40 and DOT agency drug and alcohol testing rules;
- (iii) Key DOT drug testing requirements, including collections, laboratory testing, MRO review, and problems in drug testing;
- (iv) Key DOT alcohol testing requirements, including the testing process, the role of BATs and STTs, and problems in alcohol tests;
- (v) SAP qualifications and prohibitions;
- (vi) The role of the SAP in the return-to-duty process (including evaluation, referrals, follow-up evaluation, continuing treatment recommendations, and the follow-up testing plan);
- (vii) SAP consultation and communication with employers, MROs, and treatment providers;
- (viii) Reporting and recordkeeping requirements;
- (ix) Issues that SAPs confront in carrying out their duties under the program.
(2) Following your completion of qualification training under paragraph (c)(1), you must satisfactorily complete an examination administered by a nationally-recognized organization. The exam must comprehensively cover all elements listed in that paragraph.
(3) You must meet the requirements of paragraph (a), paragraph (b), and paragraph (c) before you begin to perform SAP functions.

(d) Continuing Education

During each three-year period from the date on which you satisfactorily complete the examination under paragraph (c)(2), you must complete continuing education consisting of at least 12 professional development hours (e.g., CEUs) relevant to SAP functions.

(1) This continuing education must include material on new technologies, interpretations, recent guidance, rule changes, and other developments in SAP practice pertaining to the DOT program.
(2) Your continuing education activities must include documentable assessment tools to help determine whether you have adequately learned the material.

(e) Documentation

You must maintain documentation showing that you currently meet all requirements of this section and provide it on request to DOT agency representatives, employers, and C/TPAs.

[65 FR 79526, Dec 19 2000; 69 FR 3022, Jan 22 2004; 71 FR 49384, Aug 23 2006; 71 FR 55347, Sept 22 2006; 82 FR 52246, Nov 13 2017]

§ 40.283 How Does a Certification Organization Obtain Recognition for Its Members as SAPs?

Cross Reference

Link to an amendment published at 88 FR 27650, May 2, 2023.

(a) If you represent a certification organization that wants DOT to authorize its certified drug and alcohol counselors to be added to § 40.281(a)(6), you may submit a written petition to DOT requesting a review for inclusion.
(b) You must obtain NCCA accreditation before DOT will act on your petition.
(c) You must also meet the minimum requirements of Appendix E to this part before DOT will act on your petition.

[65 FR 79526, Dec 19 2000; 71 FR 49384, Aug 23 2006]

§ 40.285 When Is a SAP Evaluation Required?

Cross Reference

Link to an amendment published at 88 FR 27650, May 2, 2023.

(a) As an employee, when you have violated DOT drug and alcohol regulations, you cannot again perform any DOT safety-sensitive duties for any employer until and unless you complete the SAP evaluation, referral, and education/treatment process set forth in this subpart and in applicable DOT agency regulations.
(b) For purposes of this subpart, a verified positive DOT drug test result, a DOT alcohol test with a result indicating an alcohol concentration of 0.04 or greater, a refusal to test (including by adulterating or substituting a urine specimen) or any other violation of the prohibition on the use of alcohol or drugs under a DOT agency regulation constitutes a DOT drug and alcohol regulation violation.

§ 40.287 Employer Requirements for Providing SAP Information

As an employer, you must provide to each employee (including an applicant or new employee) who violates a DOT drug and alcohol regulation a listing of SAPs readily available to the employee and acceptable to you, with names, addresses, and telephone numbers. You cannot charge the employee any fee for compiling or providing this list. You may provide this list yourself or through a C/TPA or other service agent.

§ 40.289 Employer Responsibility for SAP and Treatment Services

(a) As an employer, you are not required to provide a SAP evaluation or any subsequent recommended education or treatment for an employee who has violated a DOT drug and alcohol regulation.
(b) However, if you offer that employee an opportunity to return to a DOT safety-sensitive duty following a violation, you must, before the employee again performs that duty, ensure that the employee receives an evaluation by a SAP meeting the requirements of § 40.281 and that the employee successfully complies with the SAP's evaluation recommendations.
(c) Payment for SAP evaluations and services is left for employers and employees to decide and may be governed by existing management-labor agreements and health care benefits.

§ 40.291 What Is the Role of the SAP in the Evaluation, Referral, and Treatment Process of an Employee Who Has Violated DOT Agency Drug and Alcohol Testing Regulations?

Cross Reference

Link to an amendment published at 88 FR 27650, May 2, 2023.

(a) As a SAP, you are charged with:
- (1) Making a face-to-face clinical assessment and evaluation to determine what assistance is needed by the employee to resolve problems associated with alcohol and/or drug use;
- (2) Referring the employee to an appropriate education and/or treatment program;
- (3) Conducting a face-to-face follow-up evaluation to determine if the employee has actively participated in the education and/or treatment program and has demonstrated successful compliance with the initial assessment and evaluation recommendations;
- (4) Providing the DER with a follow-up drug and/or alcohol testing plan for the employee; and
- (5) Providing the employee and employer with recommendations for continuing education and/or treatment.
(b) As a SAP, you are not an advocate for the employer or employee. Your function is to protect the public interest in safety by professionally evaluating the employee and recommending appropriate education/treatment, follow-up tests, and aftercare.

§ 40.293 What Is the SAP's Function in Conducting the Initial Evaluation of an Employee?

Cross Reference

Link to an amendment published at 88 FR 27650, May 2, 2023.

As a SAP, for every employee who comes to you following a DOT drug and alcohol regulation violation, you must accomplish the following:

(a) Provide a comprehensive face-to-face assessment and clinical evaluation.
(b) Recommend a course of education and/or treatment with which the employee must demonstrate successful compliance prior to returning to DOT safety-sensitive duty.
- (1) You must make such a recommendation for every individual who has violated a DOT drug and alcohol regulation.
- (2) You must make a recommendation for education and/or treatment that will, to the greatest extent possible, protect public safety in the event that the employee returns to the performance of safety-sensitive functions.
(c) Appropriate education may include, but is not limited to, self-help groups (e.g., Alcoholics Anonymous) and community lectures, where attendance can be independently verified, and bona fide drug and alcohol education courses.
(d) Appropriate treatment may include, but is not limited to, in-patient hospitalization, partial in-patient treatment, out-patient counseling programs, and aftercare.
(e) You must provide a written report directly to the DER highlighting your specific recommendations for assistance (see § 40.311(c)).
(f) For purposes of your role in the evaluation process, you must assume that a verified positive test result has conclusively established that the employee committed a DOT drug and alcohol regulation violation. You must not take into consideration any of the following:
- (1) A claim by the employee that the test was unjustified or inaccurate;
- (2) Statements by the employee that attempt to mitigate the seriousness of a violation of a DOT drug or alcohol regulation (e.g., related to assertions of use of hemp oil, “medical marijuana,” “contact positives,” poppy seed ingestion, or job stress);
- (3) Personal opinions you may have about the justification or rationale for drug and alcohol testing.
(g) In the course of gathering information for purposes of your evaluation in the case of a drug-related violation, you may consult with the MRO. As the MRO, you are required to cooperate with the SAP and provide available information the SAP requests. It is not necessary to obtain the consent of the employee to provide this information.

§ 40.295 May Employees or Employers Seek a Second SAP Evaluation if They Disagree with the First SAP’s Recommendations?

(a) As an employee with a DOT drug and alcohol regulation violation, when you have been evaluated by a SAP, you must not seek a second SAP's evaluation in order to obtain another recommendation.
(b) As an employer, you must not seek a second SAP's evaluation if the employee has already been evaluated by a qualified SAP. If the employee, contrary to paragraph (a) of this section, has obtained a second SAP evaluation, as an employer you may not rely on it for any purpose under this part.

§ 40.297 Does Anyone Have the Authority to Change a SAP’s Initial Evaluation?

Cross Reference

Link to an amendment published at 88 FR 27650, May 2, 2023.

(a) Except as provided in paragraph (b) of this section, no one (e.g., an employer, employee, a managed-care provider, any service agent) may change in any way the SAP's evaluation or recommendations for assistance. A third party is not permitted to make a SAP's recommendation more or less stringent by altering or replacing the SAP's evaluation.
(b) The SAP who made the initial evaluation may modify his or her evaluation and recommendations based on new or additional information (e.g., from an education or treatment program).

§ 40.299 What Is the SAP’s Role and What Are the Limits on a SAP’s Discretion in Referring Employees for Education and Treatment?

(a) As a SAP, upon your determination of the best recommendation for assistance, you will serve as a referral source to assist the employee's entry into an education and/or treatment program.
(b) To prevent the appearance of a conflict of interest, you must not refer an employee requiring assistance to your private practice or to a person or organization from which you receive payment or to a person or organization in which you have a financial interest. You are precluded from making referrals to entities with which you are financially associated.
(c) There are four exceptions to the prohibitions contained in paragraph (b) of this section. You may refer an employee to any of the following providers of assistance, regardless of your relationship with them:
- (1) A public agency (e.g., treatment facility) operated by a state, county, or municipality;
- (2) The employer or a person or organization under contract to the employer to provide alcohol or drug treatment and/or education services (e.g., the employer's contracted treatment provider);
- (3) The sole source of therapeutically appropriate treatment under the employee's health insurance program (e.g., the single substance abuse in-patient treatment program made available by the employee's insurance coverage plan); or
- (4) The sole source of therapeutically appropriate treatment reasonably available to the employee (e.g., the only treatment facility or education program reasonably located within the general commuting area).

§ 40.301 What Is the SAP’s Function in the Follow-Up Evaluation of an Employee?

Cross Reference

Link to an amendment published at 88 FR 27650, May 2, 2023.

(a) As a SAP, after you have prescribed assistance under § 40.293, you must re-evaluate the employee to determine if the employee has successfully carried out your education and/or treatment recommendations.
- (1) This is your way to gauge for the employer the employee's ability to demonstrate successful compliance with the education and/or treatment plan.
- (2) Your evaluation may serve as one of the reasons the employer decides to return the employee to safety-sensitive duty.
(b) As the SAP making the follow-up evaluation determination, you must:
- (1) Confer with or obtain appropriate documentation from the appropriate education and/or treatment program professionals where the employee was referred; and
- (2) Conduct a face-to-face clinical interview with the employee to determine if the employee demonstrates successful compliance with your initial evaluation recommendations.
(c)
- (1) If the employee has demonstrated successful compliance, you must provide a written report directly to the DER highlighting your clinical determination that the employee has done so with your initial evaluation recommendation (see § 40.311(d)).
- (2) You may determine that an employee has successfully demonstrated compliance even though the employee has not yet completed the full regimen of education and/or treatment you recommended or needs additional assistance. For example, if the employee has successfully completed the 30-day in-patient program you prescribed, you may make a “successful compliance” determination even though you conclude that the employee has not yet completed the out-patient counseling you recommended or should continue in an aftercare program.
(d)
- (1) As the SAP, if you believe, as a result of the follow-up evaluation, that the employee has not demonstrated successful compliance with your recommendations, you must provide written notice directly to the DER (see § 40.311(e)).
- (2) As an employer who receives the SAP's written notice that the employee has not successfully complied with the SAP's recommendations, you must not return the employee to the performance of safety-sensitive duties.
- (3) As the SAP, you may conduct additional follow-up evaluation(s) if the employer determines that doing so is consistent with the employee's progress and with employer policy or labor-management agreements.
- (4) As the employer, following a SAP report that the employee has not demonstrated successful compliance, you may take personnel action consistent with your policy and/or labor-management agreements.

§ 40.303 What Happens if the SAP Believes the Employee Needs Additional Treatment, Aftercare, or Support Group Services Even After the Employee Returns to Safety-Sensitive Duties?

(a) As a SAP, if you believe that ongoing services (in addition to follow-up tests) are needed to assist an employee to maintain sobriety or abstinence from drug use after the employee resumes performance of safety-sensitive duties, you must provide recommendations for these services in your follow-up evaluation report (see § 40.311(d)(10)).
(b) As an employer receiving a recommendation for these services from a SAP, you may, as part of a return-to-duty agreement with the employee, require the employee to participate in the recommended services. You may monitor and document participation and may use SAP and EAP services to assist and monitor employees' compliance. Nothing in this section permits an employer to fail to carry out follow-up testing (see § 40.309).
(c) As an employee, you are obligated to comply with the SAP's recommendations for these services. Failure or refusal to do so may result in disciplinary action by your employer.

§ 40.305 How Does the Return-to-Duty Process Conclude?

Cross Reference

Link to an amendment published at 88 FR 27650, May 2, 2023.

(a) As the employer, if you decide that you want to permit the employee to return to the performance of safety-sensitive functions, you must ensure that the employee takes a return-to-duty test. This test cannot occur until after the SAP has determined that the employee has successfully complied with prescribed education and/or treatment. The employee must have a negative drug test result and/or an alcohol test with a concentration of less than 0.02 before resuming performance of safety-sensitive duties.
(b) As an employer, you must not return an employee to safety-sensitive duties until the employee meets the conditions of paragraph (a) of this section. However, you are not required to return an employee to safety-sensitive duties because the employee has met these conditions. That is a personnel decision subject to collective bargaining agreements or other legal requirements.
(c) As a SAP or MRO, you must not make a “fitness for duty” determination as part of this re-evaluation unless required to do so under an applicable DOT agency regulation. It is the employer, rather than you, who must decide whether to return the employee to a safety-sensitive position.

§ 40.307 What Is the SAP’s Function in Prescribing the Employee’s Follow-Up Tests?

Cross Reference

Link to an amendment published at 88 FR 27650, May 2, 2023.

(a) As a SAP, for each employee who has committed a DOT drug or alcohol regulation violation and who seeks to resume the performance of safety-sensitive functions, you must establish a written follow-up testing plan. You do not establish this plan until after you determine that the employee has successfully complied with your recommendations for education and/or treatment.
(b) You must present a copy of this plan directly to the DER (see § 40.311(d)(9)).
(c) You are the sole determiner of the number and frequency of follow-up tests and whether these tests will be for drugs, alcohol, or both, unless otherwise directed by the appropriate DOT agency regulation. For example, if the employee had a positive drug test but your evaluation or the treatment program professionals determined that the employee had an alcohol problem as well, you should require follow-up tests for both drugs and alcohol.
(d) However, you must, at a minimum, direct that the employee be subject to six unannounced follow-up tests in the first 12 months of safety-sensitive duty following the employee's return to safety-sensitive functions.
- (1) You may require a greater number of follow-up tests during the first 12-month period of safety-sensitive duty (e.g., one per month or two per month for six months then monthly thereafter).
- (2) You may also require follow-up tests during the 48 months of safety-sensitive duty following this first 12-month period.
- (3) You are not to establish the actual dates for the follow-up tests you prescribe; the employer chooses the specific dates.
- (4) As the employer, you must not impose additional testing requirements under company authority that go beyond the SAP's follow-up testing plan.
(e) The requirements of the SAP's follow-up testing plan “follow the employee” to subsequent employers or through breaks in service.
- Example 1: The employee returns to duty with Employer A. Two months later, after completing two of six follow-up tests, the employee quits and joins Employer B. Employer B is responsible for ensuring the remaining four tests are completed within 10 months and learns of this obligation through the inquiry made under § 40.25.
- Example 2: The employee returns to duty with Employer A, completes two tests, is laid off, then recalled four months later. Employer A must ensure the employee completes the remaining four follow-up tests within the next nine months.
(f) As the SAP, you may modify the determinations you have made concerning follow-up tests. For example, even if you recommended testing beyond the first 12 months, you can terminate the requirement at any time after the first year of testing. However, you must not reduce the minimum requirement of six tests within the first 12 months after returning to duty.

§ 40.309 What Are the Employer’s Responsibilities with Respect to the SAP’s Directions for Follow-Up Tests?

(a) As the employer, you must carry out the SAP's follow-up testing requirements. You may not allow the employee to continue safety-sensitive functions unless follow-up testing is conducted as directed by the SAP.
(b) Schedule follow-up tests on dates of your choosing but ensure they are unannounced and unpredictable.
(c) You cannot substitute any other tests (e.g., random testing) for this requirement.
(d) You cannot count a cancelled follow-up test as completed; it must be recollected.

§ 40.311 What Are the Requirements Concerning SAP Reports?

Cross Reference

Link to an amendment published at 88 FR 27650, May 2, 2023.

(a) As the SAP conducting the required evaluations, you must send written reports directly to the DER and not to a third party (except as provided in § 40.355(e)). You may forward simultaneously to the DER and a C/TPA.
(b) Employers must ensure SAP reports come directly from the SAP and are not altered by a third party.
(c) The SAP's initial evaluation report must include:
- (1) Employee's name and SSN;
- (2) Employer's name and address;
- (3) Reason for assessment and violation date;
- (4) Date(s) of assessment;
- (5) SAP's education and/or treatment recommendation; and
- (6) SAP's telephone number.
(d) The SAP's follow-up evaluation report (after successful compliance) must include:
- (1) Employee and employer information;
- (2) Initial assessment dates and treatment plan;
- (3) Treatment provider names and program dates;
- (4) Clinical characterization and determination of compliance;
- (5) Follow-up testing plan and continuing care recommendations (see § 40.311(d)).
(e) If the employee has not demonstrated successful compliance, the SAP's report must include reasons and dates of further evaluations (see § 40.311(e)).
(f) The SAP must also provide these reports to the employee if unemployed and to any new employer in the industry.
(g) SAPs must maintain records for 5 years and make them available to DOT and NTSB investigators on request.
(h) Employers must keep SAP reports for 5 years from receipt.

§ 40.313 Where Is Other Information on SAP Functions and the Return-to-Duty Process Found in This Regulation?

You can find other information on the role and functions of SAPs in the following sections of this part:

§ 40.3 — Definition
§ 40.347 — Service agent assistance with SAP-required follow-up testing
§ 40.355 — Transmission of SAP reports
§ 40.329(c) — Making SAP reports available to employees on request
Appendix E to Part 40 — SAP Equivalency Requirements for Certification Organizations

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