Implementation Guidelines - Federal Transit Administration - U.S. ...

Employers are not required to follow the
aftercare recommendations, but they are
strongly encouraged to include them as part
of a return-to-duty agreement or contract
with the employee [§40.303]. If the
employee fails to follow the aftercare
recommendations, he/she may be subject to
disciplinary action by the employer for
failing to follow the conditions outlined in
the return-to-duty agreement.
SAP Limitations [§40.29(f)]. When
making recommendations for
education/treatment, SAPs are prohibited
from considering employee claims that the
testing process was unjust or inaccurate. As
professionals, SAPs must not be swayed by
statements from employees that attempt to
lessen the seriousness of a DOT rule
violation or the SAPs own personal opinions
about the justification or rationale for the
test. The SAP must assume that a verified
positive test result has conclusively
established that the employee violated the
DOT drug and/or alcohol rules.
Once an SAP has made his/her
evaluation and informed the employer in
writing of their recommendation, the
employer (and employee) is prohibited from
seeking a second opinion. Only the SAP
who made the initial evaluation may modify
the evaluation and recommendations based
on new or additional information.
Confidentiality [§40.311]. SAPs adhere
to various federal and state laws and rules,
codes of ethical standards, and certification
and licensing board requirements for
confidentiality. However, this privileged
client-counselor relationship is waived if the
employee poses a clear and imminent danger
to self or others, if there is known or
suspected child or elder abuse or neglect,
when medical records are court-ordered by a
judge compelling disclosure, or when the
counselor seeks medical or legal advice.
Chapter 9. Substance Abuse
Professionals, Rehabilitation, and
Treatment
The DOT regulation [§ 40.293] also
states that when an employee has tested
positive or refused a drug test, the SAP may
consult with the MRO who verified the test
to obtain information pertinent to the
evaluation. The MRO and SAP are free to
discuss the test result, quantification levels
(if already obtained by the MRO), and any
other medical information relevant to the
case. Release of this information does not
require the employee’s consent. The SAP
may also communicate with education
and/or treatment providers without
employee consent regarding confidential
information that is relevant to the follow-up
evaluation process.
The SAP clinical records for each
employee must be maintained in accordance
with federal, state, and local laws regarding
record maintenance, confidentiality, and
release of information. In addition, these
records must be made available to DOT
agency representatives and representatives
of the National Transportation Safety Board
in an accident investigation, upon request.
The SAP may also provide written
reports directly to the employer without a
signed release from the employee. Upon the
employee’s request, the SAP must make a
copy of all SAP reports available to the
employee except for information regarding
the follow-up testing plan. Records will also
be released to other third parties (e.g.,
subsequent employers) with a written
release from the employee.
Education/Treatment Options
[§40.293(c)(d)]. Appropriate education
options may include, but are not limited to,
self-help groups (e.g., Alcoholics
Anonymous), community lectures where
attendance can be independently verified,
and bona fide drug and alcohol education
courses. Treatment options may include, but
9-6 August 2002