How Does DOT Follow-Up Testing Work After a Violation?

Follow-up testing is the set of unannounced tests an employee takes after returning to safety-sensitive work following a DOT drug or alcohol violation. It comes after the return-to-duty process, in which a substance abuse professional (SAP) evaluates the employee and the employee passes a return-to-duty test with a negative drug result, an alcohol concentration below 0.02, or both, depending on the violation (49 CFR 40.305(a)).

What the SAP decides. The SAP writes a follow-up testing plan and sends it to the designated employer representative (DER). The SAP sets the number and frequency of tests and whether they are for drugs, alcohol or both (49 CFR 40.307(a) to (c)). The minimum is six unannounced follow-up tests in the first 12 months of safety-sensitive duty after the return. The SAP may order more tests in that first year and may extend testing through the following 48 months of safety-sensitive duty, for a possible total of 60 months of safety-sensitive duty (49 CFR 40.307(d)). The SAP may end testing after the first year but cannot reduce the six tests in the first 12 months (49 CFR 40.307(f)).

What the employer does.

• Picks the test dates. The SAP does not set them (49 CFR 40.307(d)(3)).
• Keeps tests unannounced, with no pattern and no advance notice (49 CFR 40.309(b)).
• Does not give the employee the schedule or say how many tests remain (49 CFR 40.307(g)).
• Does not count random tests as follow-up tests (49 CFR 40.309(c)).
• Recollects any cancelled follow-up test, because a cancelled test does not count (49 CFR 40.309(d)).
• Does not add company tests beyond the SAP's plan (49 CFR 40.307(d)(4)).

The plan follows the employee. If the employee changes employers or has a break in service, the remaining follow-up tests carry over. The new employer learns of the plan through the previous employer check under 49 CFR 40.25 (49 CFR 40.307(e)). FMCSA applies these Part 40 rules to drivers (49 CFR 382.311), and FMCSA employers report the completion of follow-up testing to the Clearinghouse (49 CFR 382.705(b)). Follow-up test records and schedules are kept for five years (49 CFR 40.333(a)(1)).