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Putting your employee back to work after failing a drug test

Home / Compliance / Putting your employee back to work after failing a drug test

August 1, 2016 by David Bell

Last updated: January 30, 2023

§ 40.305

How does the return-to-duty process conclude?

(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.

Click HERE to watch a mock scenario of a DER addressing a positive drug test and the steps to follow.

Filed Under: Compliance

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About David Bell

After seeing the damage caused by drug use first-hand, David sold his previous company and worked his way up through the ranks in the drug testing industry to help employers keep drugs and alcohol out of the workplace.

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