Employee Failed a Drug Test What Employers Need to Know About SAP Evaluation and Return to Duty

In a situation where an employee fails a drug test based on the DOT rules, the employer must take action with caution. This case does not only represent a problem for HR because, among employees who work in safety-sensitive jobs regulated by DOT, it requires certain actions such as removal from duty, SAP (Substance Abuse Professional), treatment/education, return-to-duty, and follow-up tests.

Moreover, the employer should be aware of what decisions he or she cannot make.

What Happens When an Employee Fails a DOT Drug Test?

According to the 49 CFR Part 40 regulations, an employer who has been notified of a verified positive drug test must remove the employee from safety-sensitive work duties immediately. Adulterated or substituted tests considered a refusal under the DOT rules require immediate removal of the employee as well.

In case of a CDL driver subject to the FMCSA regulations, a violation may impact the status of the driver in the FMCSA Drug and Alcohol Clearinghouse. In case of a qualifying violation, the driver may not perform safety-sensitive functions before completing the return-to-duty process.

For this reason, the situation should not be considered as an internal disciplinary action within the company.

Employer Responsibilities After a Failed DOT Test

The duties of the employer vary according to the type of the violation and position of the employee. However, there are some specific actions that are essential.

Move the Employee out of Safety-Sensitive Operations

The employee should no longer engage in operations regulated by DOT if his or her drug test is positive or the refusal is considered valid. It would ensure safety of the general population and compliance with the federal testing program on the part of the employer.

Ensure That the Employee Receives Information about SAPs

In case the SAP assessment is necessary, the employer should provide the employee with access to the Substance Abuse Professionals. The employee chooses an assessor.

Comply with the Clearinghouse Program Requirements

FMCSA-regulated employers are obliged to report violations and return-to-duty information to the Drug and Alcohol Clearinghouse.

Maintain Confidentiality of Information

Information related to drug and alcohol tests is confidential. An employer needs to ensure that the information is accessed only by people who have the legitimate need to know.

Understanding the DOT SAP Evaluation

A DOT SAP evaluation is the first step in the return-to-duty process following a DOT drug and alcohol violation. It is important to note from federal regulation that an employee cannot carry out DOT safety-sensitive functions until the DOT SAP evaluation and referral processes have been completed.

The SAP process is not limited to providing approval for the return of employees to duty. Under U.S. DOT regulations, the SAP process evaluates the employee, recommends the required education and/or treatment, conducts a follow-up evaluation, and prepares a follow-up testing process. The purpose of the SAP process is not to be an advocate but rather to ensure public safety.

What the SAP Process Could Include

The SAP process usually follows the above order:

• First SAP evaluation

• Education or treatment as recommended by the SAP

• Compliance with the required program

• Second SAP evaluation

• SAP decision that the employee is fit for return-to-duty testing

• Return-to-duty drug or alcohol test

• Follow-up testing as per the SAP process

• There is no specific program applicable for all employees.

DOT Drug Test Failed Employee Return to Duty Process

A DOT drug test failed employee cannot simply return to a safety-sensitive position because the employee completed counseling or because a certain amount of time has passed.

The employer must follow the required return-to-duty process.

FMCSA explains that a driver returns to a "not prohibited" status after the required process is completed and a negative return-to-duty test result is entered into the Clearinghouse.

What Employers Should Know About SAP Providers

Not all counselors and treatment professionals are able to conduct a DOT SAP assessment. SAPs need to meet the qualification standards set forth under 49 CFR Part 40.

An employer needs to refer an employee to a qualified SAP Provider and not someone who fails to qualify. The FMCSA Clearinghouse website has materials about SAP registration, duties, and reporting.

The assessment by the qualified SAP involves the review of the incident and deciding on the right kind of education or treatment. After that, another assessment is done by the SAP following the recommendations.

The employer will find it easy to comply with the process when dealing with a qualified provider without making the SAP become an advocate for one party.

How the Clearinghouse SAP Program Affects CDL Drivers

The Clearinghouse SAP Program is especially relevant for those CDL drivers who are regulated by FMCSA.

If a disqualifying violation takes place, then the driver could get a "prohibited" status and be unable to engage in safety-sensitive activities. The process of returning to duty includes driver, employer, SAP, and, when relevant, the consortium/third-party administrator.

The Clearinghouse documents several important events, which include the SAP evaluation and RTD test eligibility. Employers need to report negative results of RTD tests and the completion of follow-up testing plan, if any.

Moreover, employers need to perform the required Clearinghouse queries before permitting their covered drivers to perform safety-sensitive operations. Regulations of FMCSA mandate employers to acquire the necessary consent and use Clearinghouse for their relevant FMCSA-regulated employees.

Why a Failed Test Does Not Automatically Mean Permanent Job Loss

The consequences of a DOT test failure can be severe, but successfully following the required procedures for compliance does not automatically mean termination or reinstatement.

According to the guidelines of the FMCSA, it is crucial to point out that compliance with the recommended treatment and a negative result of a return-to-duty test are necessary conditions for considering the possibility of reinstatement, but it does not necessarily mean that the individual will be hired back.

For additional information about handling workplace violations, employers can also review this related resource: How Employers Should Handle a Failed Drug Test: Compliance and Employee Support

Final Thoughts

In the case where an employee tests positive for drugs, the employer must take time not to act hastily, but rather go through the right process according to DOT guidelines. The process includes removal from safety-sensitive duties, evaluation by a SAP, education or treatment if necessary, return-to-duty testing, and follow-up.

Clearinghouse reporting is another essential step for those under the regulations of the FMCSA employers. In knowing each obligation, the employer can maintain compliance, while the employee knows the process to regain his/her duties as safety-sensitive.

SAP Solutions offers information regarding DOT SAP evaluations and return-to-duty testing.

Common Questions About a Failed DOT Drug Test

1. Can the employee continue driving when his/her DOT drug test is positive?

No, as per DOT guidelines, the employee needs to be placed on non-DOT safety-sensitive jobs after verifying the results of a positive DOT drug test.

2. Is there a need for SAP evaluation after failing the drug test?

The employee will have to undergo a DOT SAP evaluation and return-to-duty procedure after violating the DOT drug and alcohol regulations.

3. How is the SAP chosen?

It is the responsibility of the employer to prepare the list of qualified SAPs, and it is for the employee to choose his/her SAP evaluator.

4. Is there any guarantee of getting the job after passing the return-to-duty test?

Passing the test is necessary to return to safety-sensitive jobs, but it does not provide any guarantee of employment or reinstatement.

5. How many follow-up tests should be conducted?

The follow-up testing schedule is set up by the SAP. For FMCSA drivers, according to the FMCSA guidance, there should be at least six unannounced follow-up tests in the first 12 months after return to safety-sensitive jobs.