responsibility employer

Responsibility of the Employer

It’s important to understand your role in the DOT return-to-duty process, even for employees no longer with your company.

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A Guide for Employers on Keeping Our Transportation System Safe.

The Department of Transportation (DOT) has rules to ensure the safety of our roads, skies, and railways. These rules, established in 1991, require companies like yours (if you employ pilots, truck drivers, etc.) to follow specific procedures for drug and alcohol testing. 

DOT agencies that must abide by these regulations include FAA, FTA, FMSCA, FRA, PHMSA, and USCG. Therefore, if you are an employer of DOT-mandated safety-sensitive employees in any of these modes, it is crucial to understand the drug and alcohol regulations.

This guide explains what employers need to know about the DOT’s drug and alcohol testing program, especially when an employee has violated the rules.

Not sure how to enter RTD tests? You can find instructions here.

responsibility employer

responsibility employer

responsibility employer

Employers are responsible for giving SAP referrals

As an employer, you’re required to provide employees with information about Substance Abuse Professionals (SAPs). This is important even if the employee is no longer working for you but is still in the transportation industry.

• Legal Requirement: DOT regulations state that you must give employees names and contact details of SAPs, regardless of whether they’re still employed by you or not.
• No Charge: You cannot charge an employee for this list of SAPs.
• Importance of Compliance: Providing this information helps ensure employees can get the necessary support to return to work safely.

DOT regulation 40.287 prohibits employers from charging an employee for a list of SAPs.

Read About The Substance Abuse Professionals and the Return-to-Duty Process

40.287 What information is an employer required to provide concerning SAP services to an employee who has a DOT drug and alcohol regulation violation?
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.

Reference: DOT Rule 49 CFR Part 40 Section 40.287 

Learn more about the Return to Duty Process.

40.287 What information is an employer required to provide concerning SAP services to an employee who has a DOT drug and alcohol regulation violation?
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.

Reference: DOT Rule 49 CFR Part 40 Section 40.287 

Learn more about the Return to Duty Process.

Employers Must Administer Return-to-Duty Tests

Once the employee completes the SAP program, you’ll need to give them a drug test to allow them to return to safety-sensitive work. You also need to enter the results into a government database.

Conduct Follow-Up Tests (Optional)
The SAP may recommend follow-up drug tests after the employee returns to work. You’re responsible for scheduling and paying for these tests (though some companies may share the cost with the employee). The specific details of the follow-up plan are confidential.

What Employers Can’t Do

• 
  Charge for SAP Information: You can’t charge employees for your list of SAPs.
• 
  Share Follow-Up Testing Schedule: The details of the follow-up testing plan are confidential and cannot be shared with the employee.
• 
  Hire Someone Who Hasn’t Completed Follow-Up Testing: If you hire someone who failed a drug or alcohol test at a previous job, you must ensure they completed all the required follow-up tests.

Why is This Important?

• 
  Productivity Loss: An employee who is out of work during the RTD process can impact operations.
• 
  Liability: Failure to comply with DOT regulations can result in significant penalties.
• 
  Employee Morale: Balancing compliance with employee support and understanding is crucial.

Best Practices for Employers

Employers must thoroughly understand the DOT regulations to ensure compliance and protect their company from liability.

• Stay Informed: Keep up-to-date on DOT regulations and industry best practices.
• Substance Abuse Policy: Develop a clear and comprehensive substance abuse policy outlining the RTD process.
• Proactive Approach: Implement a comprehensive substance abuse prevention program and offer resources for employees who may be struggling with substance abuse.
• Clear Communication: Maintain open communication with employees about the RTD process and expectations.
• Training: Train supervisors and employees about the company’s substance abuse policy and the RTD process.
• SAP Selection: Choose a qualified SAP to conduct evaluations and develop appropriate treatment plans.
• Recordkeeping: Maintain accurate and complete records of the RTD process for at least five years.

Learn more about the SAP Program.
Learn more about the RTD Process.

Frequently Asked Questions

Can Employers hire a SAP graduate who didn’t complete their follow-up testing?

If you hire an employee who hasn’t completed a follow-up testing plan, you are now responsible for having documentation of the employee’s negative return-to-duty test and all follow-up tests that were ordered by the SAP. Don’t trust an employer’s word for how many of these tests were already conducted. 

Ask the previous employer to forward copies of the employee’s return-to-duty test and all follow-up tests that have been conducted. You need to have them in your files. If the previous employer cannot provide them to you, you should assume the tests were never conducted, and you’ll have to start at the beginning, maybe even with a return-to-duty test.

DOT requires an employer to keep all return-to-duty documentation for 5 years. Even though a return-to-duty or follow-up test is negative, an employer must keep the paperwork for 5 years as evidence that the tests were conducted. Auditors will expect to see this documentation in your file.

What is a non-DOT SAP evaluation?

Many companies have a program to maintain a drug-free workplace for employees not covered by DOT regulations. This program helps keep the work environment safe and may be based on insurance requirements, labor agreements, and company HR policies. When included in employment terms, employees must fully follow the company’s drug and alcohol testing program.

Employers have found that the DOT SAP process sets a standard for employees’ return to work. As a result, they may ask employees who have failed or refused a drug or alcohol test to undergo an evaluation by a DOT-qualified Substance Abuse Professional (SAP) for a ‘non-DOT SAP’ assessment. While employers can’t make employees see a SAP, if an individual chooses not to go through the process, the employer can legally deny their return to work.

What are the benefits of sending an employee for a ‘non-DOT SAP’ evaluation?

The employer’s access to the employee’s information is limited. The Substance Abuse Professional (SAP) will conduct a face-to-face assessment with the employee. Following this, the SAP will supply the employer with a written report that is restricted to the employee’s offense and recommendations for the type of drug or alcohol treatment/education required to return to work.

If the employee complies with the recommended plan, the SAP will provide the employer with a written return-to-work report. This report will include the treatment provider’s details, treatment dates, the employee’s participation in the program, and an assessment of the employee’s compliance. A return-to-work recommendation may be made once the employee has finished the program or, in the SAP’s judgment, has shown commitment and stability. The employee must complete the treatment program, and all reports from the treatment provider are sent to the SAP, not the employer.

If the employee does not undergo a DOT SAP, a State-Certified treatment agency may provide the employer with an evaluation that is typically categorized as a “bio-psych-social” assessment. This report documents the employee’s drug and alcohol usage/treatment history. It will routinely include medical, mental health, legal/arrest, work, and family history. Much of the information detailed in this report is beyond what an employer needs to know and potentially prejudicial to the employee.

Who pays for these follow-up tests recommended by the SAP in the follow-up report?

Now, who pays for these extra tests? Well, it depends on the company you work for. Some companies cover the cost of these follow-up tests themselves. But most of the time, if you’re the one who broke the rules, you’re the one who has to pay for these extra tests. It’s like if you accidentally scratched someone’s car while borrowing it—you’d probably have to pay for the repairs.

If you’re not sure, you can check the company’s written rules about drug and alcohol testing. If it’s not clear, it’s totally okay to ask your boss or HR (Human Resources) person for more info. They can tell you more about the testing policy at your workplace.

What responsibility do owner-operators have?

Owner-operators must hire a CTPA/Third Party Administrator to schedule their randomized drug testing and are responsible for entering the results into the Clearinghouse. If owners/operators need a CTPA/third third-party administrator, they can look them up by conducting a Google search on CTPAs and third-party administrators for DOT drug testing.

What is the FMCSA Clearinghouse?

The Federal Motor Carrier Safety Administration (FMCSA) Clearinghouse is a secure online database that serves as a centralized repository for information related to commercial motor vehicle (CMV) drivers’ drug and alcohol program violations. It was established to improve highway safety and prevent drivers from operating commercial vehicles while under the influence of drugs or alcohol.

Key features of the FMCSA Clearinghouse include:

Driver Record Queries

• Employers of CDL (Commercial Driver’s License) holders must query the Clearinghouse as part of the pre-employment process to determine whether a prospective employee has any drug or alcohol violations on record.
• Current employers must also conduct annual queries on all CDL drivers they employ.

Reporting Violations

• Employers, medical review officers (MROs), substance abuse professionals (SAPs), and consortia/third-party administrators (C/TPAs) are required to report drug and alcohol program violations, including positive test results, refusals to test, and completion of return-to-duty requirements.
• This reporting ensures that all relevant information regarding a driver’s drug and alcohol testing history is stored in one centralized location.

Notification of Violations

• Drivers are notified electronically when information about them is entered into the Clearinghouse. This allows them to review their records and take any necessary actions, such as completing return-to-duty requirements or challenging inaccurate information.

Access Controls

• To ensure data privacy and security, access to information in the Clearinghouse is restricted to authorized users, including employers, drivers, and enforcement personnel.

Enforcement and Compliance

• The Clearinghouse helps enforcement agencies and employers verify compliance with FMCSA drug and alcohol testing regulations and take appropriate actions in cases of non-compliance.

The FMCSA Clearinghouse enhances safety on the nation’s roadways by providing employers and enforcement agencies with real-time access to information about CDL drivers’ drug and alcohol program violations. This helps to identify and address unsafe driving behaviors more effectively.

If you hire an employee who hasn’t completed a follow-up testing plan, you are now responsible for having documentation of the employee’s negative return-to-duty test and all follow-up tests that were ordered by the SAP. Don’t trust an employer’s word for how many of these tests were already conducted. 

Ask the previous employer to forward copies of the employee’s return-to-duty test and all follow-up tests that have been conducted. You need to have them in your files. If the previous employer cannot provide them to you, you should assume the tests were never conducted, and you’ll have to start at the beginning, maybe even with a return-to-duty test.

DOT requires an employer to keep all return-to-duty documentation for 5 years. Even though a return-to-duty or follow-up test is negative, an employer must keep the paperwork for 5 years as evidence that the tests were conducted. Auditors will expect to see this documentation in your file.

Many companies have a program to maintain a drug-free workplace for employees not covered by DOT regulations. This program helps keep the work environment safe and may be based on insurance requirements, labor agreements, and company HR policies. When included in employment terms, employees must fully follow the company’s drug and alcohol testing program.

Employers have found that the DOT SAP process sets a standard for employees’ return to work. As a result, they may ask employees who have failed or refused a drug or alcohol test to undergo an evaluation by a DOT-qualified Substance Abuse Professional (SAP) for a ‘non-DOT SAP’ assessment. While employers can’t make employees see a SAP, if an individual chooses not to go through the process, the employer can legally deny their return to work.

The employer’s access to the employee’s information is limited. The Substance Abuse Professional (SAP) will conduct a face-to-face assessment with the employee. Following this, the SAP will supply the employer with a written report that is restricted to the employee’s offense and recommendations for the type of drug or alcohol treatment/education required to return to work.

If the employee complies with the recommended plan, the SAP will provide the employer with a written return-to-work report. This report will include the treatment provider’s details, treatment dates, the employee’s participation in the program, and an assessment of the employee’s compliance. A return-to-work recommendation may be made once the employee has finished the program or, in the SAP’s judgment, has shown commitment and stability. The employee must complete the treatment program, and all reports from the treatment provider are sent to the SAP, not the employer.

If the employee does not undergo a DOT SAP, a State-Certified treatment agency may provide the employer with an evaluation that is typically categorized as a “bio-psych-social” assessment. This report documents the employee’s drug and alcohol usage/treatment history. It will routinely include medical, mental health, legal/arrest, work, and family history. Much of the information detailed in this report is beyond what an employer needs to know and potentially prejudicial to the employee.

Now, who pays for these extra tests? Well, it depends on the company you work for. Some companies cover the cost of these follow-up tests themselves. But most of the time, if you’re the one who broke the rules, you’re the one who has to pay for these extra tests. It’s like if you accidentally scratched someone’s car while borrowing it—you’d probably have to pay for the repairs.

If you’re not sure, you can check the company’s written rules about drug and alcohol testing. If it’s not clear, it’s totally okay to ask your boss or HR (Human Resources) person for more info. They can tell you more about the testing policy at your workplace.

Owner-operators must hire a CTPA/Third Party Administrator to schedule their randomized drug testing and are responsible for entering the results into the Clearinghouse. If owners/operators need a CTPA/third third-party administrator, they can look them up by conducting a Google search on CTPAs and third-party administrators for DOT drug testing.

The Federal Motor Carrier Safety Administration (FMCSA) Clearinghouse is a secure online database that serves as a centralized repository for information related to commercial motor vehicle (CMV) drivers’ drug and alcohol program violations. It was established to improve highway safety and prevent drivers from operating commercial vehicles while under the influence of drugs or alcohol.

Key features of the FMCSA Clearinghouse include:

Driver Record Queries

• Employers of CDL (Commercial Driver’s License) holders must query the Clearinghouse as part of the pre-employment process to determine whether a prospective employee has any drug or alcohol violations on record.
• Current employers must also conduct annual queries on all CDL drivers they employ.

Reporting Violations

• Employers, medical review officers (MROs), substance abuse professionals (SAPs), and consortia/third-party administrators (C/TPAs) are required to report drug and alcohol program violations, including positive test results, refusals to test, and completion of return-to-duty requirements.
• This reporting ensures that all relevant information regarding a driver’s drug and alcohol testing history is stored in one centralized location.

Notification of Violations

• Drivers are notified electronically when information about them is entered into the Clearinghouse. This allows them to review their records and take any necessary actions, such as completing return-to-duty requirements or challenging inaccurate information.

Access Controls

• To ensure data privacy and security, access to information in the Clearinghouse is restricted to authorized users, including employers, drivers, and enforcement personnel.

Enforcement and Compliance

• The Clearinghouse helps enforcement agencies and employers verify compliance with FMCSA drug and alcohol testing regulations and take appropriate actions in cases of non-compliance.

The FMCSA Clearinghouse enhances safety on the nation’s roadways by providing employers and enforcement agencies with real-time access to information about CDL drivers’ drug and alcohol program violations. This helps to identify and address unsafe driving behaviors more effectively.

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