(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 that the employee have 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., you may require one test a month during the 12-month period; you may require two tests per month during the first 6-month period and one test per month during the final 6-month period).
(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 decision on specific dates to test is the employer's.
(4)As the employer, you must not impose additional testing requirements ( e.g., under company authority) on the employee 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.
(f)As the SAP, you may modify the determinations you have made concerning follow-up tests. For example, even if you recommended follow-up testing beyond the first 12-months, you can terminate the testing requirement at any time after the first year of testing. You must not, however, modify the requirement that the employee take at least six follow-up tests within the first 12 months after returning to the performance of safety-sensitive functions.
(g)As the employer, SAP, or other service agent, you must not provide to the employee a copy of their drug and/or alcohol follow-up testing schedule prescribed by the SAP. No employer, SAP, or other service agent will indicate to the employee what the frequency or duration of the employee's follow-up testing schedule will be. The SAP can require follow-up testing for either or both drugs and alcohol for a drug-related or an alcohol-related violation.