C.F.R. » Title 49 » PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS › Subpart O—Substance Abuse Professionals and the Return-to-Duty Process

49 C.F.R. § 40.305

How does the return-to-duty process conclude?

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(a) As the employer, if you decide that you want to permit the employee to return to the performance of safety-sensitive functions, you must ensure that the employee takes a return-to-duty test. This test cannot occur until after the SAP has determined that the employee has successfully complied with prescribed education and/or treatment. The employee must have a negative drug test result and/or an alcohol test with an alcohol concentration of less than 0.02 before resuming performance of safety-sensitive duties.

(b) As an employer, you must not return an employee to safety-sensitive duties until the employee meets the conditions of paragraph (a) of this section. However, you are not required to return an employee to safety-sensitive duties because the employee has met these conditions. That is a personnel decision that you have the discretion to make, subject to collective bargaining agreements or other legal requirements.

(c) As a SAP or MRO, you must not make a “fitness for duty” determination as part of this re-evaluation unless required to do so under an applicable DOT agency regulation. It is the employer, rather than you, who must decide whether to put the employee back to work in a safety-sensitive position.

(d) As the employer, if a SAP who is otherwise fully qualified under this subpart performed a remote evaluation of the employee outside the geographic jurisdiction for their credential(s), the employee who they evaluated will not be required to seek the evaluation of a second SAP. If you decide that you want to permit the employee to return to the performance of safety-sensitive functions, you will proceed with the requirements of paragraph (a) of this section.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023]
Notes of Decisions
Cited in 5 cases (2 in the last 5 years), 2012–2024 · leading case: Jackson v. JB Hunt Transp., Inc., 384 S.W.3d 177 (Ky. Ct. App. 2012).
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Jackson v. JB Hunt Transp., Inc., 384 S.W.3d 177 (Ky. Ct. App. 2012). · cites it 4× “Hunt in 49 C.F.R. § 40.305 , captioned “How does the return-to-duty process conclude?”: 7 (a) As the employer, if you decide that you want to permit the employee to return to the performance of safety-sensitive functions, you must ensure that the employee takes a return-to-duty…”
Patrick Leaumont v. City of Alexandria, 582 F. App'x 407 (5th Cir. 2014). “See 49 C.F.R. § 40.305 (a). Leaumont argues that his missed July 10 drug test should not have been deemed a “refusal to test.”
Medelez, Inc. v. Dep't Of Emp't Sec. (Wash. Ct. App. 2019). · cites it 2× “Medelez cites 49 C.F.R. § 40.305 (a), which declares that, when an employer wants to permit an employee with a substance abuse plan to return to the performance of safety-sensitive functions, the employee must undergo a “return-to-duty test.”
Braxton v. KLLM Transp. Servs., LLC (S.D. Miss. 2023). “, 49 C.F.R. § 40.305 (b) (providing that commercial motor carriers “are not required to return an employee to safety-sensitive duties because the employee has met [certain regulatory] conditions.”
Lopez v. Singh (D.N.M. 2024). “See 49 C.F.R. § 40.305 . Mr. Singh completed a treatment plan designed by an SAP, received a letter from an SAP determining that he was eligible to drive, and presented a negative drug test.”
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