This module will cover the Department of Transportation Drug and Alcohol Testing Rules return to duty process, including the role of the substance abuse professional, or SAP. And we will also cover the relationship to the return to duty process and employee assistance programs that employers may have in place for their employees. The substance abuse professional and the return to duty process that are part of the DOT's drug and alcohol testing programs are included in 49 CFR Part 40 Subpart 0. In that section, there is a definition given of the substance abuse professional, or SAP, which is a person who evaluates employees or assesses them, employees who have had a DOT drug and alcohol testing violation and makes recommendations concerning the substance abuse education or treatment or rehabilitation that is necessary in order for them to be able to return to duty, as well as a plan for follow-up testing for monitoring the employee after return to safety-sensitive duty and any aftercare that is appropriate for their continuing progress. The role of the substance abuse professional is one that is seen as protecting the public interest in safety. So under the DOT rules, who can be a substance abuse professional? Well, the regulation specifically says that a person can have any of the following professional qualifications, be a licensed physician, that is an MD or a DO, be a licensed or certified social worker, psychologist, employee assistance professional, a drug and alcohol counselor certified by the National Association of Alcohol and Drug Abuse Counselors or by the International Consortium or by the National Bureau for Certification. They can also have a professional qualification as a licensed or certified marriage and family therapist. In addition to the professional qualification standards, the Department of Transportation's regulation says that the SAP has to have some basic knowledge and experience credentials, and those include diagnosis and treatment of drug and alcohol-related disorders. They also have to understand from reading the regulation and other guidance provided by the Department of Transportation, the SAP functions as they relate to the employer interests in safety-sensitive duties. They have to have a basic knowledge of 49 CFR Part 4, the procedural regulation, as well as knowledge of the DOT agency regulations and knowledge of the Department of Transportation's substance abuse professional guidelines. The DOT rule specifies that SAPs have to complete specific qualification training. And so that includes two things essentially, a training course that has the following components, the background, rationale, and coverage of the DOT drug and alcohol testing programs. Again, it has to cover Part 40 and the DOT agency rules. That training also must have the key DOT testing requirements, such as how testing is done, pre-employment testing, random testing, et cetera. It also must include the prohibitions for SAPs in terms of their assessment process, their referral process, et cetera. The SAP responsibilities must be a part of that component training and the reports and record-keeping requirements, including confidentiality and maintenance of the records for the return to duty and substance abuse professional process. So in addition to having a training course that has those key components, the substance abuse professional must complete an examination given by a nationally recognized professional or training organization. The Department of Transportation's Office of Drug and Alcohol Policy and Compliance does have a list of the training organizations that have a certification examination for substance abuse professionals that has been approved. The substance abuse professional is responsible for maintaining their training and examination documentation and providing it upon request to the DOT agencies or to any employers or service agents of the employers concerning that they meet the DOT qualification standards. In addition to the initial qualification standards that we talked about, both in terms of professional licensure or certification, as well as completion of the qualification training course and passing a certification examination, substance abuse professionals are required to complete at least 12 continuing education units every three years in order to maintain their qualification under 49 CFR Part 40. The courses that those SAPs take should include new technologies in drug and alcohol testing, interpretations that have been issued by the Department of Transportation concerning DOT violations and safety-sensitive employees' return to work, etc., any recent guidance that has been issued by the Department of Transportation, rule changes to 49 CFR Part 40 or relevant changes to any of the DOT agency regulations, and developments overall in substance abuse professional practice, standards of practice, best practices, etc. The courses must include some documented assessment of the SAP's knowledge base for having taken the course. So essentially, some type of built-in self-assessment tool needs to be part of the continuing education courses that the SAP engages in for meeting the continuing education requirements. The substance abuse professionals' responsibilities under 49 CFR Part 40 and the Department of Transportation agency drug and alcohol testing regulations include, first and foremost, that the assessment or evaluation that the SAP conducts of an employee or an applicant for a DOT-regulated position who has engaged in prohibited drug or alcohol conduct must be a face-to-face clinical assessment. Unlike the medical review officer review and verification of a test result, where all of that process can be done telephonically, for example, between the specimen donor and the medical review officer, the assessment and evaluations required under the regulation by the substance abuse professional have to be face-to-face. So once that initial face-to-face clinical assessment and evaluation is completed, it is then the SAP's responsibility to refer the individual to the appropriate program for rehabilitation slash treatment or education. After the person has participated in the recommended rehabilitation or treatment process, then the substance abuse professional has a requirement to conduct another face-to-face follow-up evaluation assessment. The SAP then, after that second or follow-up evaluation, makes recommendations for the employee's continuing education or treatment, such as aftercare, upon returning to duty. The SAP also makes a written follow-up testing plan, and the SAP's responsibility is to provide their assessment and evaluation reports, both the initial one and the follow-up one, in writing and directly to the employer. Let's take a look now at the specifics of the SAP's initial evaluation. Every time that the SAP does an initial evaluation for an individual who has violated the DOT drug or alcohol testing rules, the substance abuse professional must make a recommendation for the assistance, the treatment, the awareness, education, or whatever form of rehabilitation in every single case. They are to recommend the most appropriate course of either education or treatment. That can be treatment or rehabilitation along any continuum from classes in drug awareness, for example, to inpatient hospitalization, to detox, to outpatient work, to documentation of participation in 12-step groups, et cetera. The SAP is not permitted to consider claims of, by the employee or by the individual, that they may have been inappropriately selected for a test, in other words, that the post-accident testing criteria weren't met, the random process was not fair, or the reasonable suspicion testing criteria were not met. The SAP also cannot consider claims of hemp use, CBD oil, medical marijuana, et cetera, as an explanation for the person's violation of the DOT rules. However, under the federal statutes and under the federal regulation, the use of marijuana and cannabis for any purpose by safety-sensitive employees is prohibited. The SAP cannot consider a claim that the individual might make that their morphine-positive test should not have been verified as positive because they consumed poppy seeds and the medical review officer did not believe their story, et cetera. Nor can the SAP accept as an explanation or overturn a test result or a violation because the employee alleges that there were job stresses and other factors that contributed to them having a DOT drug and alcohol violation. The SAP may consult with the MRO, and one of the things that frequently you as a medical review officer may encounter is a substance abuse professional who is going to contact you and ask you for the quantitative level of the test result. Remember, for Department of Transportation drug tests, the quantitative level, in other words, how many nanograms of THC or how many nanograms per milliliter of urine of cocaine or benzoecoline were detected is not releasable or is not forwarded on to the employer. You are the only person as the medical review officer that gets that information from the laboratory. The substance abuse professional, however, may ask you for that information. Just a note here that I think that certainly you are required to give it to the substance abuse professional. I do think that it is helpful if you can, as the medical review officer, explain to them that the quantitative level really doesn't have anything to do with the clinical picture. In other words, that they should not use a quantitative level of benzoecoline above a certain amount to mean that they're going to recommend inpatient treatment or that that's an indication of addiction or of more frequent use than if the amount of benzoecoline detected was a lower quantity. The initial evaluation then continues with the SAP's major responsibility to determine what kind of rehabilitation, what kind of intervention or assistance, whatever term you want to use for it, is most appropriate given this person's violation and based on the session or the interview. Appropriate education assistance include things like self-help groups, 12-step groups, community lectures, drug and alcohol awareness education courses, et cetera. Appropriate treatment also includes, again, a continuum of what type of assistance or intervention may be most appropriate from inpatient hospitalization, partial inpatient hospitalization, and outpatient counseling programs, and also, obviously, whether or not the programs that the person that the SAP is going to refer them to has aftercare potential or aftercare programs available. There are several key points about the SAP's initial evaluation. One of those is that the employer or the employee cannot seek an additional evaluation. In other words, once the SAP has done the initial evaluation and provided a written report and either the employer or the employee do not agree with the SAP's recommendation for assistance or treatment, for example, they can't select another SAP or seek an additional evaluation for the initial evaluation process. Secondly, the employer or the employee cannot change the SAP's evaluations. So, let's say that the SAP has recommended inpatient treatment and the employer or the employee do not want to go forward with inpatient treatment and instead want to do outpatient treatment, the employer nor the employee can change the recommendation of the substance abuse professional. The SAP himself may modify the recommendations that he or she made based on additional information from the treatment provider. If the substance abuse professional, at the conclusion of the initial evaluation, recommends outpatient counseling and then at the start of the outpatient counseling, the treatment provider contacts the SAP who, remember, has made the referral to that treatment provider and says, this individual's problem is such that they really need detox or they need acute inpatient care before they can benefit from outpatient counseling, then the SAP may modify the initial evaluation report to reflect the requirement for detox and or inpatient treatment followed by outpatient counseling. The SAP is responsible, as I alluded to, to making the referral to the appropriate treatment or education provider. So that is not laid upon the employee, but rather that is a part of the SAP's duty in the initial evaluation process. The SAP must provide an initial evaluation report, and it must be a written report. It is on the SAP's own letterhead, signed and dated by the SAP, and must contain the following information, certainly the employee's name and either social security number or other identifying information, the employer's name and address, the reason for the assessment, for example, the specific violation of DO2 regulations and the date of that violation, such as a positive test or refusal to test, the date of the initial assessment, and the SAP's education and or treatment recommendation for this individual, and then, of course, the SAP's telephone number. I mentioned earlier that the substance abuse professional, a key part of their initial evaluation function is to make a referral for assistance or treatment. The DO2 regulation has several prohibitions that exist with regard to this SAP referral process, and so in making the referral to the appropriate treatment or rehabilitation assistance entity, the SAP cannot refer to his or her own private practice, for example, treatment practice or rehabilitation practice, cannot refer them to a person or organization from whom they are receiving pay, either as a consultant or as an employee, et cetera. They cannot refer the person to an organization in which the SAP has a financial interest or association, and this is all done to essentially guard against a conflict of interest that a substance abuse professional, in order to be able to have more beds filled at a facility where they work or to have more income in a counseling entity or outpatient service with which they are affiliated, would tend to refer people to that facility or that entity with which the SAP is engaged. There are four exceptions to these prohibitions. One of them is that if it is a public agency that the substance abuse professional is referring to and yet they are an employee of that public agency, that is okay. If it is referring to a treatment or rehabilitation entity that is provided where that service or that treatment is provided by the employer or the employer's contract, so for example, to an education and awareness program that is supported by the employers or through an employer contract with an employee assistance program, for example, and if the SAP is a part of that EAP service, whether that's an internal or contracted service. Another exception is in terms of health insurance, if the health insurance indicates that this is the only outpatient program, for example, that's part of the group that the person's treatment will be covered under, then that is permissible. And if the SAP is the sole provider reasonably accessible to the employee, then that is also an exception for the self-referral, if you will, prohibitions. Let's move now to the SAP's follow-up evaluation. The SAP's follow-up evaluation forms the basis for an employer's decision that it may return an employee to duty. Remember, these are all employees who have been removed from DOT regulated safety sensitive duty because they had a violation of the DOT agency regulation. This follow-up evaluation then is what the employer is able to use to begin that process of putting the person back into a safety sensitive position or into continuing to perform safety sensitive work. The SAP must determine if the employee has successfully complied with the recommendations for rehabilitation. And in order to make that statement, if you will, the substance abuse professional needs to confer with the education and or treatment professionals, conduct a face-to-face clinical interview or session with the employee, and then form and make a clinical determination regarding successful compliance. It doesn't mean that the employee has to be completely finished with any kind of treatment or assistance or aftercare or whatever. It just simply means, did they comply with the SAP's initial recommended regimen or recommended course of rehabilitation assistance? For this follow-up evaluation, one of two determinations is possible. Either the employee has demonstrated successful compliance with the SAP's recommendations for assistance and rehabilitation, or the employee has not demonstrated successful compliance. If the latter is the case, then the employee is not eligible to return to safety sensitive duty, DOT regulated position. The SAP can conduct an additional follow-up evaluation if the employer authorizes another follow-up evaluation. The employer may take personnel action at this point. So it's not uncommon that if the employer is giving an individual who's had a positive test or refusal to test an opportunity to rehabilitate, if you will, and regain their eligibility for performing safety sensitive work, one of the conditions of that quote last chance agreement or that return to work agreement is that the employee must comply with the SAP's recommendations. And for the employee that does not, that discontinues treatment before he has successfully complied or who does not participate successfully in the treatment, then under most circumstances of employment law, the employer can take disciplinary action up to and including termination of the individual's employment. Let's take a look now at the SAP's follow-up evaluation report and what the components of that written report are for the employee who has demonstrated compliance with the SAP's recommendations for rehabilitation, intervention, and assistance. So that follow-up evaluation letter, if you will, or report, again, is in writing, and it has to have the following things identified, the date of the follow-up evaluation interview or session, the name of the service provider or the treatment entity or the rehabilitation facility that provided the recommended education and or treatment for the individual, the inclusive dates of the employee's participation in the recommended program, the clinical characterization of the employee's program participation in terms of that they were successful, that they did attend the sessions, that they participated in them, that the treatment professional's assessment was that they had benefited from the intervention from the assistance. The follow-up report also has to have the SAP's follow-up testing plan. In other words, how many follow-up tests and the frequency of those tests once the individual returns to performing safety-sensitive work. The final thing in the SAP's follow-up evaluation report is what type of aftercare or continuing care needs are appropriate to assist this individual with relapse prevention and to be able to successfully abstain from engaging in prohibited drug or alcohol conduct. So that may be things like a recommendation that they continue with support groups or aftercare programs afforded by the treatment facility, continued treatment, excuse me, continued participation in 12-step groups. Now, for the employee who is not compliant with the SAP's recommended treatment or intervention, the SAP then does do a follow-up evaluation report. In that report, the SAP needs to identify, again, the date of the initial evaluation and the summary of the recommended treatment from that initial evaluation, the date of the first follow-up evaluation, and then the dates of any further follow-up evaluation that the SAP has scheduled. And finally, the SAP's clinical reasons for determining that the employee has not demonstrated successful compliance. So these would be things like the employee did not attend but one-third of the scheduled outpatient therapy sessions, or the employee failed to, as recommended, attend 12-step groups on a weekly basis for a period of six weeks. It may be something like the employee did not participate in the treatment process, was resisted to treatment, denied that they had a problem, and in the opinion of the treatment provider, gained no benefit from their being involved in the rehabilitation or the treatment program. Let's get some specifics about the SAP's follow-up testing plan, which, remember, has to be a part of their report for a compliant employee who is now going to be eligible to return to performing safety-sensitive duties. So the SAP determines the number and the frequency or the duration of follow-up testing. The SAP, however, must recommend in their follow-up testing plan at least six tests during the first 12 months after the individual returns to safety-sensitive duty. The SAP can extend that follow-up testing program for up to five years or 60 months after the person returns to safety-sensitive duty. The SAP can terminate the requirement for follow-up testing after the first year of testing, but they cannot terminate it earlier than that. The requirements for follow-up testing do follow the employee from employer to employer until all follow-up tests are completed. And remember, the follow-up testing doesn't begin until the person is in a safety-sensitive position and performing safety-sensitive work. So let's say that they come back to work in June of this year, and the SAP has recommended 12 follow-up tests in the first 12 months of return to duty, and then six follow-up tests in the second year after their return to duty. So if that employee, within eight months of coming back to work, leaves that position and goes to another employer where they are in a DOT position, the gaining employer becomes responsible for seeing that the remaining tests on the person's follow-up testing plan are completed and the plan is fully complied with. Some other points of interest, if you will, concerning the substance abuse professional evaluation assessment process. First of all, remember that SAP reports must be sent directly to the employer. Now they can send a parallel copy, if you will, to the employer's third-party administrator or other service agent. And I want to mention here that there are certainly a vast number of SAP assessments and evaluations that are being conducted when the individual is actually not employed. So they may have been working for a trucking company, they had a positive test, and the trucking company terminates their employment. So the driver, however, in order to work for any other trucking company or in any kind of a DOT-regulated position, safety-sensitive position, that driver has to complete the SAP and return-to-duty process. So they may be going through the initial evaluation, the treatment, and the follow-up evaluation while they are not actively employed. Or if they're employed, they're not employed in a safety-sensitive position by a transportation industry employer. So that's a key point. And in that case, if the individual is not currently employed, then the SAP's initial report is given to the employee or the, quote, former employee, if you will. And then also, the follow-up report after the individual has gone through treatment is also given to the employee so that when he then applies for a transportation job, a safety sensitive job, he will have proof that he has been through and successfully completed the SAP process. Now, if the employee is the only recipient of the follow-up evaluation SAP report, then the SAP does not put the follow-up testing plan in that report. But once the employee gets employed in a DOT safety sensitive job, then the employer, the incumbent employer would contact the SAP and ask them for the details of the follow-up testing plan. So return to duty, remember though, is the employer's decision, not the SAP's. Only after the SAP's follow-up evaluation shows successful compliance with recommended treatment and education is the employee eligible to perform safety sensitive work for that employer or for any subsequent employer. And the other gate, if you will, for the return to duty process is that the employer that is taking this person back or taking them back to a safety sensitive job or is going to give them an opportunity to perform a safety sensitive job would administer the required return to duty test. And the person must have a negative result on the return to duty test before they can resume or begin safety sensitive tasks and duties. The SAP does not make a fitness for duty determination. They are simply making a compliance with requirements for return to duty determination, not a fitness for duty determination. Briefly now, we will discuss employee assistance programs and with particular emphasis on the relationship between an employer's employee assistance program and the functions and role of the substance abuse professional and the DOT's mandated return to duty process. The history of employee assistance programs in U.S. businesses goes back much further than the start of drug testing under the Department of Transportation. We know that employee assistance programs date back into the 1940s and 50s. And we also know that there's been significant evolution, if you will, in the various models and for the operational implementation of employee assistance programs in U.S. business and industry. And so today we would say that basically we have employee assistance programs that are either internal programs, that is they are staffed and operated by the employer itself. They could be external programs that are operated by a contractor so that an employer has a business entity contracts for EAP services for its employees. There are EAPs that are operated and administered by management groups and by union groups. Some of the union groups have a very, very rich history of providing employee assistance programs for their members over decades. Some employee assistance programs do simple evaluations of what the person's problem may be and how that is impacting their job. Is it a personal problem? Is it a family problem? Is it a legal problem? Is it a mental health problem, a substance abuse problem, et cetera? So they're going to essentially again, function as an information and a referral point. So what is it that the employee is having difficulty with and where can we best get that problem resolved? They may do much more complex evaluations that could include evaluations for family members, et cetera. And EAPs may offer short-term or even longer term treatments. Almost always these may be in the area of substance abuse, in the area of mental health. And again, it does depend on how the EAP is structured and how it is staffed. The typical functions of an employee assistance program include educating employees about alcohol and drugs. There is some data available that shows that certainly upwards of 70% of cases that employee assistance programs handle substance abuse as either a presenting or an involved dynamic or problem that the employee is experiencing that is impacting on their job. They also, another function of course, is to explore personal problems that may be affecting work performance, whether that has to do with stress, with medical problems, mental health issues, familial problems, et cetera. Training supervisors to recognize the signs and symptoms of substance abuse and to act as referral agents to the EAP is another central function of many employee assistance program providers. Along with that, there are a lot of supervisory training offerings that are aimed at being able to recognize stress factors in the workplace, being able to deescalate conflict in the workplace, again, recognizing substance abuse, recognizing initial signs of mental health and mental illness problems. EAPs also consult on specific cases and they refer employees for assistance and treatment outside the employee assistance program to the most appropriate treatment provider. And sometimes that's a referral for legal services. It may be a referral for elder care or home healthcare services. And finally, the other thing that the EAP is very involved in is as a function is evaluating employees for return to work. Now, again, under the DOT rules, remember it is a specific substance abuse professional who is the professional charged with evaluating that employee for returning to a DOT safety sensitive job after they have complied with the recommended treatment or evaluation. Let's take a look at how the employee assistance program intertwines and is a part of the overall DOT drug and alcohol testing rules. Largely when you see employee assistance program in the DOT agency rules, it includes the EAPs in the context of providing supervisory and employee training and drug and alcohol awareness information to employees. And again, we're talking in the DOT rules, remember to the supervisors of safety sensitive employees and the employees that we're talking about are those in DOT regulated safety sensitive positions. The employer may provide SAP services through its EAP, either it's contracted EAP or it's internal EAP. The EAP, however, can only provide those SAP services if they have staff who meet the specific SAP qualifications that we went over that are prescribed in 49 CFR part 40. The employee assistance program may serve as a referral agent to the SAP for DOT covered employees. There's no question about that. I see that a lot in transportation industries today so that the larger business entities have employee assistance programs. And so when an employee has a DOT drug or alcohol violation, it is the EAP then that identifies for that employee a qualified substance abuse professional that can take them through the return to duty process. So the EAP cannot return a DOT covered employee to work without the employee having been through the SAP return to duty process and the SAP's follow-up assessment that the individual is eligible to return. Certainly any substance abuse professional or employee assistance professional needs to have an understanding of the company's policy on rehabilitation before evaluating any employee. They need to know what, if there are last chance agreements, they need to know what their benefits packages will pay for or are available to the, what is available to the employee in terms of assistance and or treatment. The DOT rules do not require employers to provide for rehabilitation of employees who violate DOT rules. In other words, a DOT regulated employer can terminate the employment of any individual who has a verified positive test, a refusal to test, an alcohol test of 0.04 or greater or any other violation of the DOT agency regulations. There is no mandatory last chance or second chance that is mandated by the DOT rules. Now, that being said, there may be state laws, state employment law that will require an employer to provide one opportunity for rehabilitation or a last chance agreement for a positive drug test or a positive alcohol test or for being intoxicated while on duty or whatever it may be. So it would be the state law in that case that would place that obligation upon the employer, not the federal law or not the federal regulation. So an employee who tests positive on a DOT drug or alcohol test can potentially lose a job. They may in fact, depending on the state that there is, lose their right therein. They may lose their right to unemployment insurance benefits or unemployment compensation. They may also lose or have reduced disability or workers' compensation benefits due to a positive test or refusal to take a post-accident test, for example. So it's very serious, potentially a very serious consequence for employees who do not adhere to either the DOT regulations relative to drug and alcohol misuse and controlled substance use or to the company's drug-free workplace policy. And so in conclusion, let me reemphasize the point I made a little bit earlier about the employer of a discharged positive test employee, for example. Under the DOT rules, the employer who is going to terminate a person's employment because they had a positive test or refusal to test on a DOT mandated drug or alcohol test does, has no obligation to facilitate a referral to a substance abuse professional. They don't have to set it up. They do not have to schedule it. They do not have to give an opportunity for the person to get the SAP evaluation before their termination takes effect, but they must for an applicant or for an incumbent employee, the employer must provide the SAP contact information. That means that they have an obligation to provide either a nationwide network contact information for the employee, the former employee or the ex-employee at this point, where they can get a substance abuse professional evaluation assessment done, or they have to provide them the names and or address and contact of local substance abuse professionals that meet the DOT qualifications. They do not have an obligation to ensure that the employee undergoes a SAP evaluation. They do not have to pay for an employee SAP evaluation. And that's one of the difficult, somewhat difficult things about this whole plan, if you will, for return to duty for employees who have violated the DOT regulations. Frequently, substance abuse professional assessments and evaluations are not paid for traditionally under health insurance. And so if the employee has been terminated or if it was an applicant for a position and they do not have a job, they are going to have to generally pay the cost of the SAP assessment and evaluations out of pocket. The employer has no obligation to reinstate, as I mentioned, a rehabilitated employee or an employee who has successfully complied with the recommended treatment and or rehabilitation. And lastly, the employer has no obligation to maintain the SAP evaluation records. Now, the employee would need to retain that. There are under some of the DOT agency regulations, however, a requirement that the employer must keep information about the follow-up testing, for example, and the dates of the person's return to duty. And so the employer would need to keep that information and the dates of the person's return to duty, as well as the date of the person's return to duty. And so the employer would need to keep that information and the dates of the person's return to duty, as well as the date of the person's return to duty, as well as the date of the person's return to duty, as well as the date of the person's return to duty, as well as the date of the person's return to duty, as well as the date of the person's return to duty,

DOT Drug and Alcohol Testing

Substance Abuse Professional

SAP qualification standards

DOT testing requirements

follow-up evaluations

employee assistance programs

return-to-duty decisions

termination of employment