Can a DER Talk to a SAP Without the Employee's Consent?
By Abby Willroth, NCAC I, ADC, IADC, SAP, MATC, CAMS, RPSS
DOT-Qualified Substance Abuse Professional | Author of Back to Duty: What Every Safety-Sensitive Employee Should Know About the DOT Return-To-Duty Process
Why DERs Hesitate
Yes, a Designated Employer Representative (DER) can talk to a Substance Abuse Professional (SAP) without the employee's written consent. The U.S. Department of Transportation says so directly.
When a safety-sensitive employee has a DOT drug, alcohol, or refusal-to-test violation, the SAP and the employer work together to move the employee through the Return-To-Duty process. Still, many SAPs find that DERs go quiet when asked basic questions. The most common reason given is "I can't share that without the employee's consent" or "HIPAA won't allow it."
That caution is understandable, but it is not what DOT requires. This post explains what the regulations and DOT guidance actually say.
What DOT Says About Employee Consent
DOT's Office of Drug and Alcohol Policy and Compliance (ODAPC) addressed this question in its HIPAA Statement. Employers and service agents in the DOT program do not need written employee authorization to disclose drug and alcohol testing information when 49 CFR Part 40 or the DOT agency regulations require the disclosure.
The statement lists specific examples. Under that guidance, SAPs need no written authorization from employees to:
Conduct SAP evaluations
Confer with employers
Confer with Medical Review Officers (MROs)
Confer with education and treatment providers
Provide SAP reports to employers
Obtain confirmed DOT alcohol, drug or refusal to test results
The same guidance states that MROs need no written authorization to confer with SAPs. The communication is meant to run in both directions.
Why HIPAA Is Not a Barrier
HIPAA is the most common reason DERs give for not responding, yet ODAPC addresses it head on. Even if DOT testing information is viewed as protected health information, written authorization is not required when DOT regulations require the use or disclosure. Under HIPAA itself, 45 CFR §164.512(a) permits disclosures that are required by law.
There is a second point many employers miss. HIPAA applies to covered entities: health plans, health care clearinghouses, and certain health care providers. In most cases, an employer acting in its role as an employer is not a covered entity, so HIPAA does not govern the DER's conversation with a SAP in the first place.
Part 40 still has its own confidentiality rules, and SAPs follow them. The point is simply that DOT built the SAP and DER relationship into the regulations, and HIPAA does not override it.
What a DER Can Share and Why It Matters
A SAP's questions are not idle curiosity. SAP qualification training includes a sample employer interview questionnaire, and the questions below are drawn from that standard practice. The DER's answers assist the SAP in conducting a thorough evaluation and in preparing accurate SAP reports. Under the ODAPC guidance above, the employer may share this information with the SAP without the employee's written authorization.
A SAP may ask these questions by phone, or may hand or email them to the DER as a written questionnaire to complete and return. Sample questions include:
Company and DER information: The company's name and address, and the DER's name, telephone number, and email address, so SAP reports reach the right person
DOT operating administration: Which agency covers the employee's position (FAA, FMCSA, FRA, FTA, PHMSA, or USCG)
Date of violation: When the DOT drug, alcohol, or refusal-to-test violation occurred
DOT rule violated: The specific regulation involved
Job history: The employee's job performance and attendance history
Prior positive tests or related incidents: Any previous positive tests, refusals, or related incidents during employment
Reports from previous employers: Any prior incidents reported by a previous employer
Prior SAP evaluations: Whether the employee has been evaluated by a SAP before, when, and the reason for the referral
CDL or CLP status: Whether the employee held a CDL or CLP, which affects FMCSA Drug and Alcohol Clearinghouse requirements
C/TPA: The Consortium/Third-Party Administrator, if one manages the employer's testing program
Return or rehire eligibility: Whether the employee is eligible to return, which tells the SAP where Return-To-Duty documentation should go
As a SAP, I also ask one additional question:
SAP list provided to the employee: Did your company provide the employee with a list of qualified SAPs, as required under 49 CFR Part 40, §40.281 and §40.287? (49 CFR §40.287)
Under §40.287, an employer must provide an employee who has a DOT drug, alcohol, or refusal-to-test violation with a listing of SAPs who are readily available to the employee and acceptable to the employer, along with their names, addresses, and telephone numbers. §40.281 sets the qualifications every SAP on that list must meet. Asking this question confirms the employer met its obligation and that the employee was given a fair choice of qualified SAPs. It also documents in the client file that this step of the process was completed, which supports the file in the event of an audit.
Under §40.311, SAP reports must go directly from the SAP to the employer. When a DER does not respond, reports can be delayed and the employee's Return-To-Duty process stalls. A short reply from the DER keeps the process moving for everyone.
The Bottom Line
DOT expects SAPs and DERs to communicate. When a SAP reaches out, a prompt and complete response is not a privacy risk. It is part of how the Return-To-Duty process is designed to work after a DOT drug, alcohol, or refusal-to-test violation.
DERs with questions about what they can share are welcome to contact Willroth Consulting at 501-733-9063 or contactus@willrothconsulting.com. For a complete walkthrough of the process from the employee's side, read Back to Duty: What Every Safety-Sensitive Employee Should Know About the DOT Return-To-Duty Process.
Abby Willroth is a DOT-qualified Substance Abuse Professional and founder of Willroth Consulting in Conway, Arkansas. ASK A SAP!®
About the Author
Abby Willroth, NCAC I, ADC, IADC, SAP, MATC, CAMS, RPSS, is a qualified Substance Abuse Professional serving safety-sensitive employees under all six DOT operating administrations: FAA, FMCSA, FRA, FTA, PHMSA, and USCG. She is the Founder, Owner, and Principal Consultant of Willroth Consulting in Conway, Arkansas, and the creator of ASK A SAP!®.
Abby is the author of Back to Duty: What Every Safety-Sensitive Employee Should Know About the DOT Return-To-Duty Process, a step-by-step guide for safety-sensitive employees with a DOT drug, alcohol, or refusal-to-test violation, and for the DERs and service agents who support them.
Have a question about the DOT return-to-duty process? ASK A SAP!®
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