Rule2026-04337
Procedures for Transportation Workplace Drug and Alcohol Testing Programs: Substance Abuse Professional and the Return-to-Duty Process
Primary source
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Published
March 4, 2026
Issuing agencies
Transportation Department
Abstract
The Substance Abuse Professional (SAP) is the `gatekeeper' for the Department of Transportation's return-to-duty process (RTD). As the `gatekeeper', the SAP has a crucial role to play in recommending the level of treatment an employee may need in their path to returning to performing a safety-sensitive function after violating the DOT's drug and alcohol testing regulations. Given this critical role, the Department is publishing this notification in response to several SAP/ RTD-related issues that the Department has recently become aware of, to remind DOT-qualified SAPs to follow all the RTD process procedures in the drug and alcohol testing regulation (49 CFR part 40) and to remind DOT-regulated employers of the SAP responsibilities and RTD process.
Full Text
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<title>Federal Register, Volume 91 Issue 42 (Wednesday, March 4, 2026)</title>
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[Federal Register Volume 91, Number 42 (Wednesday, March 4, 2026)]
[Rules and Regulations]
[Pages 10518-10520]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-04337]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 40
Procedures for Transportation Workplace Drug and Alcohol Testing
Programs: Substance Abuse Professional and the Return-to-Duty Process
AGENCY: Office of the Secretary of Transportation (OST), U.S.
Department of Transportation (DOT or Department).
ACTION: Notification: The Do's and Don'ts for the Substance Abuse
Professional and the Return-to-Duty Process in the U.S. Department of
Transportation Drug and Alcohol Testing Program.
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SUMMARY: The Substance Abuse Professional (SAP) is the `gatekeeper' for
the Department of Transportation's return-to-duty process (RTD). As the
`gatekeeper', the SAP has a crucial role to play in recommending the
level of treatment an employee may need in their path to returning to
performing a safety-sensitive function after violating the DOT's drug
and alcohol testing regulations. Given this critical role, the
Department is publishing this notification in response to several SAP/
RTD-related issues that the Department has recently become aware of, to
remind DOT-qualified SAPs to follow all the RTD process procedures in
the drug and alcohol testing regulation (49 CFR part 40) and to remind
DOT-regulated employers of the SAP responsibilities and RTD process.
DATES: March 4, 2026.
FOR FURTHER INFORMATION CONTACT: Doug Simon, Director, Office of Drug
and Alcohol Policy and Compliance 1200 New Jersey Ave. SE, Washington,
DC 20590; telephone number 202-366-3784; <a href="/cdn-cgi/l/email-protection#1758535647546072757a767e7b5773786339707861"><span class="__cf_email__" data-cfemail="e7a8a3a6b7a49082858a868e8ba7838893c9808891">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Purpose
The Department's drug and alcohol testing program requires that
employees who test positive, refuse a test, or violate other DOT Agency
testing regulation provisions to immediately be removed from performing
safety-sensitive functions [Sec. 40.23] and to successfully complete
the RTD requirements, outlined in 49 CFR part 40 (Part 40), before the
employee can again perform DOT-regulated safety-sensitive functions.
SAPs play an important role as ``gatekeepers'' for DOT's RTD process.
SAPs are responsible for several duties important to the evaluation,
referral, and treatment
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of employees in the RTD process. SAPs represent the major decision
point (and in some cases, the only decision point) an employer may have
in choosing whether or not to place an employee behind the steering
wheel of a school bus, in the cockpit of a plane, at the helm of an oil
tanker, at the throttle of a train, in the engineer compartment of a
subway car, or at the emergency control valves of a natural gas
pipeline. The SAP's responsibility to the public is enormous.
On several occasions, the Department issued reminders to SAPs on
their roles and responsibilities in the drug and alcohol testing
program. For example, on October 4, 2022, the Office of Drug and
Alcohol Policy and Compliance (ODAPC) sent a list serve notice titled
``Reminder to Substance Abuse Professionals--Ensuring a Return-to-Duty
Process Unique to Each Individual Employee.'' This list serve was in
response to learning that some SAPs were telling employees how long
their RTD process would take before conducting the required initial
evaluation and SAP assessment of the employee. The list serve reminded
the SAPs not to provide employees with estimated RTD timelines because
each employee's situation was unique. It also reminded the SAPs of
their Part 40 roles and responsibilities and that decisions they make
and the actions they take regarding an employee who has violated the
DOT drug or alcohol regulations have the potential to impact
transportation safety.
On June 1, 2023, ODAPC issued updated Substance Abuse Professional
Guidelines. This document addresses and provides guidance concerning
the RTD process and the SAP's responsibilities in that process. Among
other updates, it reiterated that assessments, evaluations,
recommendations for education or treatment, and follow-up testing, had
to be unique to each employee.
On August 2, 2023, ODAPC sent a list serve titled `Back to Basics'
directed at SAPs to `Do it right the first time and every time'. The
notice in part said, ``Your function is to protect the public interest
in safety by professionally evaluating the employee and recommending
appropriate education and/or treatment, follow-up tests, and aftercare.
Your decisions and actions have the potential to impact transportation
safety directly.'' The notice also highlighted several important points
regarding SAP's role as the `gatekeeper' of the RTD process.
`Back to Basics' was a series of short reminders for service agents
(e.g., Substance Abuse Professionals, specimen collectors, Medical
Review Officers, etc.). The series emphasized `Doing it right' because
`doing it right' is important for protecting the safety of the
traveling public, protecting the integrity of the testing process, and
making sure that the process is fair to employees. `Back to Basics'
pointed out the more common issues we heard about regarding the drug
and alcohol testing process. It was not a checklist for service agents,
but a reminder that their role is crucial to the drug and alcohol
testing process. We wanted to remind service agents to ``Do it right
the first time, and every time.''
Recently, the Department has become aware of other issues related
to the SAP's roles and responsibilities. For example, employers were
having a hard time getting the follow-up testing plans from SAPs; SAPs
were referring employees solely to online programs as opposed to in-
person programs as appropriate; SAPs were prescribing the minimum
number of follow up tests in response to pressure from consortium/
third-party administrators (C/TPA) to only prescribe the minimum number
of follow up tests or risk being removed from the C/TPA's list of
recommended SAPs; SAPs were administering follow up tests; SAPs not
holding an appropriate credential to act as a DOT-qualified SAP; SAPs
were performing the RTD process in a very short timeframe to get the
employee back to work quicker; SAPs were going outside their
credential's geographical limit to perform remote evaluations; and SAPs
were performing remote evaluations without real time two-way audio and
visual communication with the employee.
As previously stated, the SAP's responsibility to the public is
enormous. When an employee tests positive for drugs, has an alcohol
violation, or refuses to submit to testing, the employee has chosen to
violate their responsibility to safety. Due to this threat to safety,
they are immediately removed from performing safety-sensitive functions
and cannot return to performing those functions until they have
successfully completed the SAP/RTD process.
SAPs clinically evaluate employees, make treatment recommendations
based on those evaluations, let the employer know when the employee has
`successfully' completed the RTD process, and provide a follow-up
testing plan to the employer. The decisions SAPs make and the actions
SAPs take regarding an employee who has violated the DOT drug or
alcohol regulations have the potential to impact transportation safety.
Based on this, employers decide whether to place the employee back in a
safety-sensitive position. This is why the Department has emphasized
the importance of the SAP/RTD process from the beginning and is now
reminding SAPs to strictly adhere to Part 40. SAPs must not prioritize
`volume' of evaluations over the `quality' of the evaluation. There is
no room for error in this process by DOT-qualified SAPs, nor for non-
qualified SAPs to act as DOT-qualified SAPs.
The following outlines the RTD process in DOT's drug and alcohol
testing program, including the SAP's role; however, it is not a
substitute for Part 40, and SAPs should refer to Part 40 and the SAP
Guidelines as the authoritative documents. It addresses several
questions participants have raised about the process and the SAP role
and applies to participants in the programs of all DOT operating
administrations involved: the Federal Aviation Administration (FAA),
Federal Railroad Administration (FRA), Federal Motor Carrier Safety
Administration (FMCSA), Federal Transit Administration (FTA), Pipeline
and Hazardous Materials Safety Administration (PHMSA), and the United
States Coast Guard (USCG).
General Role and Functions of a Substance Abuse Professional (SAP)
The following can be found in Part 40, which we reference: <a href="https://www.transportation.gov/odapc/part40">https://www.transportation.gov/odapc/part40</a>.
<bullet> As a SAP, your function is to protect the public interest
in safety by evaluating the employee and recommending appropriate
education or treatment, follow-up tests, and aftercare [Sec.
40.291(b)].
<bullet> You are not an advocate for the employer or employee
[Sec. 40.291(b)].
<bullet> To be a SAP, you need to have certain credentials, possess
specific knowledge, receive training, and achieve a passing score on an
examination. You must meet all the requirements before performing any
SAP functions [Sec. 40.281(c)(3)]. You must also take 12 professional
development hours (e.g., CEUs) every three years, relevant to your
performing SAP duties [Sec. 40.281(d)].
<bullet> SAPs should be current on the permissions and
jurisdictional limitations of their qualifying credentials [Sec.
40.281(f)].
<bullet> If a State licensing authority or DOT-recognized
credentialing organization decides that it is appropriate for one or
more of their authorized practitioner categories that qualify a person
to be a SAP to practice
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across State lines, DOT will defer to that granting authority.
<bullet> SAPs must evaluate each employee within the parameters of
the SAP's State-issued license or other credential [Sec. 40.291(a)].
<bullet> All assessments and evaluations must be done face-to-face
(whether in-person or remote) [Sec. 40.291(a)(1)].
<bullet> The evaluation should be comprised of a review of the
employee's psychosocial history, an in-depth review of the employee's
drug and alcohol use history (with information regarding onset,
duration, frequency, and amount of use; substance(s) of use and choice;
emotional and physical characteristics of use; and associated health,
work, family, personal, and interpersonal problems), and an evaluation
of the employee's current mental status [Sec. 40.281(f)].
<bullet> The evaluation should provide a diagnosis, treatment
recommendations, and a treatment plan that the employee must complete
before becoming eligible for the required follow-up evaluation and
subsequent return (if the employer desires) to safety-sensitive
functions.
<bullet> You must conduct a comprehensive assessment and clinical
evaluation unique to each employee [Sec. 40.293(e)].
<bullet> It is never appropriate to provide employees with an
estimated RTD timeline before conducting an initial SAP evaluation and
assessment.
<bullet> You must recommend a course of education or treatment
unique to each employee.
<bullet> It is never appropriate to assign the same education or
treatment to every employee.
<bullet> As a SAP, when determining what your recommendations will
be, you must not take into consideration any of the following [Sec.
40.293(g)]:
[cir] Claims that the testing process was unjust or inaccurate;
[cir] Employee attempts to mitigate the seriousness of the
violation (e.g., hemp oil, ``medical marijuana'' use, ``contact
positives'', poppy seed ingestion, job stress);
[cir] Personal opinions about the justification or rationale for
the drug and alcohol testing.
<bullet> SAPs should not provide employees with an estimated RTD
timeline because each employee's situation is different. SAPs should
not `fast-track' the RTD process with a promise to get the employee
back to performing safety-sensitive functions as soon as possible.
Again, each employee's situation is unique, and the RTD process will
progress accordingly.
<bullet> You must NEVER give the employee a copy of their follow-up
testing plan. You should also instruct the employer not to share the
follow-up testing plan with the employee.
<bullet> SAPs may direct an employee to be tested for both alcohol
and drugs for the RTD test and for the follow-up testing plan.
<bullet> FAA ONLY--SAPs must understand the FAA's requirements for
RTD testing. The type of RTD test (drug or alcohol) must be in
accordance with 14 CFR 120.109(e) and/or 120.217(e).
<bullet> FAA ONLY--When working with individuals who hold or are
required to hold an airman medical certificate issued under 14 CFR part
67 to perform a safety-sensitive function for an employer, the SAP must
follow 14 CFR 120.113(d)(2) or 120.221(c)(4) to ensure the individual
has an airman medical certificate dated after their drug or alcohol
violation before recommending to the employer that the individual may
be returned to a safety-sensitive position.
<bullet> FMCSA ONLY--SAPs are required to report specific
information to FMCSA's Clearinghouse. This reporting must comply with
the requirements outlined in 49 CFR 382.705(d).
<bullet> FRA ONLY--SAPs performing the role of the `Drug and
Alcohol Counselor (DAC)' as outlined in FRA's crewmember certification
rules (see Sec. Sec. 240.115 and 240.111) for non-DOT testing
violations, DUIs, and voluntary self-referrals must not apply Part 40
requirements. Any follow-up testing resulting from a DAC evaluation
must be non-DOT. SAPs and employers must verify and re-verify together,
the authority under which the violations or referrals occur. Using DOT
authority for directly observed RTD and follow-up testing without a
Part 40 violation is a serious breach of an employee's Constitutional
right to reasonable search and seizure.
Confidentiality and Recordkeeping
<bullet> Part 40 authorizes SAPs to provide written reports
(including the follow-up testing plan) directly to the employer or the
gaining employer when requested. Ensure the SAP report includes all
required elements [Sec. 40.311].
<bullet> When requested by the employee, you must provide the SAP
reports, from which you must redact the follow-up testing requirements
[Sec. 40.329(c)].
<bullet> You may communicate with the MRO or the education or
treatment program personnel [Sec. 40.293(h) & Sec. 40.301(b)(1)].
<bullet> Maintain copies of the employee's reports for five years
(from the date of the 2nd report) [Sec. 40.311(g)]. All records should
be maintained in limited-access areas that permit no unauthorized
entry.
<bullet> Nothing in Part 40 limits the number of times a SAP can
provide the follow-up testing plan to a potential or gaining employer.
Enforcement
<bullet> Examples of the kinds of serious noncompliance that the
Department views as appropriate grounds for starting a Public Interest
Exclusion (PIE) proceeding (not an exclusive list) [Sec. 40.365]:
[cir] Providing SAP services while not meeting the SAP
qualifications required in Sec. 40.281 or performing evaluations
without interviews meeting the requirements of Sec. 40.291(a)(1);
[cir] Any service agent falsely representing that the service
agent, or its activities, are approved or certified by the Department
or a DOT agency (such presentation includes, but is not limited to, the
use of a Department or DOT agency logo, title, or emblem);
[cir] Any service agent maintaining a relationship with another
party that constitutes a conflict of interest under Part 40.
Issued in Washington, DC.
Douglas Simon,
Director, Office of Drug and Alcohol Policy Compliance.
[FR Doc. 2026-04337 Filed 3-3-26; 8:45 am]
BILLING CODE 4910-9X-P
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