Do I have to be Employed for the SAP Return-To-Duty Process and Follow-up Testing?

Since the CDL Clearinghouse database went live in Jan. 2020, we can track that around 60,000 drivers each year have received some drug and alcohol violation.

If these drivers want to get back to work, they must complete the return-to-duty process and be a part of a SAP program for follow-up testing.

However, many of these drivers are terminated by their employer. But, if they continue to work through the return-to-duty process, they are eligible to seek employment elsewhere.

This brings up a frequently asked question: If a CDL holder is NOT employed and can’t get employed but wants to continue the follow-up process, can this CDL holder contract a consortium/third-party administrator (C/TPA) to act as a DER and send this CDL driver for the appropriate follow-up testing plan?

The short answer: No, unless they become an owner-operator. We will explain why after a quick review of the process.

What is the return-to-duty and follow-up DOT SAP process?

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After a driver receives a failed drug test result, they must begin the return-to-duty/SAP process which can be split into two major sections: the time to return-to-duty to drive again, and the time to finish the follow-up testing program for the next 12-60 months.

This process begins with an evaluation by a substance abuse professional (SAP), as required in the federal regulations in 49 CFR Part 40 Subpart O. This is often considered the SAP process.

A return-to-duty drug test is a single test required by the DOT after successful completing the SAP process.

Read more for additional details on the SAP process.

Return-to-duty testing can only be done when the driver is CURRENTLY EMPLOYED.

If the driver is not employed, they cannot start their SAP program until they are employed and will be performing a safety-sensitive function. Basically, their progress would be paused until they are employed again.

If the driver is an owner-operator and have a truck, they would use their Consortium/TPA to manage their SAP process and follow-up testing schedule.

But why?

Drug testing while employed in safety-sensitive work is an effective deterrent

Remember, after a driver finished the SAP process and can return to safety-sensitive work, they still must have unscheduled follow-up testing for at least one year.

The need to be employed to have follow-up testing has been a requirement of the regulations for more than 30 years.

There are three main reasons why this is important.

First, the federal agency does not have jurisdiction over the general public, or someone who is not operating under their jurisdiction. If the driver is no longer employed or is not an owner-operator, they are not required to follow federal regulations until they are back in a safety-sensitive function.

Second, a driver cannot know his or her follow-up testing schedule or how long it will be. If they did, this could allow the person in recovery to continuing substance abuse and time to stop so they are clean before the next follow-up test.

If a driver does not know how long the follow-up testing program could continue, that will help the driver remain free of substance abuse long-term.

For example, a SAP could recommend 6 follow-up tests in the first 12 months, and then follow-up tests in the third and fifth year. A driver would not know this, which makes the preventive nature of follow-up testing more effective.

Third, absent safety-sensitive work for an employer, the follow-up testing would not be effective.

While a C/TPA can handle this process for a self-employed owner-operator, the role of the employer and job function is very important to successful implementation and recovery.

The entire point of follow-up testing that produces negative results is to show that the driver can safely operate in DOT-regulated safety-sensitive work.

In other words, the stress of the job could be a reason why some drivers take drugs or drink heavily. If you are unemployed, this trigger is not be tested and might be easier for a driver to get through the follow-up program and later continue substance abuse while driving.

If you are currently unemployed and still must finish the return-to-duty or follow-up testing process, don’t be discouraged. There are many employers who will hire someone with a past refusal or positive test.

For help getting hired, it is often recommended to explain that you will pay for these directly observed tests instead of the potential employer.