There are several different special roles designed to ensure that a company's drug testing program works well for employees and employers, along with meeting Department of Transportation rules. Designated employer representatives (DERs), Substance Abuse Professionals (SAPs), and Third Party Administrators (TPAs or C/TPAs) are all roles defined by federal regulations and intended to fulfill important functions in the DOT drug and alcohol testing process.
DOT Regulations Dictate Transportation's Drug and Alcohol Testing
DOT Rule 49 Part 40 a.k.a. 49 CFR Part 40
In the Code of Federal Regulations (CFR), Rule 49 defines the rules and regulations imposed by the Department of Transportation (DOT) on the transportation industry. This set of rules and regulations cover a number of areas related to transportation, including the definitions of standard time zone boundaries (49 CFR Part 71) and the Americans with Disabilities Act (ADA) accessibility specifications (49 CFR Part 38). (Learn more in "DOT vs. Non DOT Testing: What's the Difference?")
DOT regulations, including 49 CFR, apply to people who work in safety-sensitive transportation jobs. This includes people who:
- Drive large commercial motor vehicles interstate or transport hazardous materials under the FMCSA;
- Operate aircraft under the FAA;
- Operate railroads under the FRA;
- Operate commercial maritime vessels under the USCG;
- Operate local public transit systems under the FTA; and
- Transport hazardous materials or energy products via pipeline or truck under the PHMSA.
Part 40 goes into great detail about the procedures to be used, which types of controlled substances to test for, what types of drug and alcohol tests to administer, and the procedures under which testing is conducted. It also defines specific roles in the testing program as well as what tasks and responsibilities fall under each role. (Learn more in "DOT Drug Testing Panel Now Includes Opioids: What It Means for Employers".)
The Designated Employee Representative (DER), Substance Abuse Professional (SAP), and Third Party Administrator (TPA) each play a distinct role in administering the DOT-mandated drug and alcohol regulations under Part 40. It’s important to understand what each does and is responsible for in order to remain compliant and ensure transportation safety.
DER - Designated Employer Representative
The DER is an employee designated to be the employer’s point person in administering the DOT drug and alcohol testing program in the workplace.
The DER is authorized to make required decisions and take immediate action in the place of the employer. Immediate action can include removing or causing an employee to be removed from safety-sensitive duties. Such immediate action may be warranted in an accident or when there is reasonable suspicion of drug use or intoxication.
The DER is also authorized to receive test results and other communications for the employer. In this way, the DER maintains the integrity of the chain of custody and control through the process.
Service agents are prohibited from acting as a DER. (49 CFR, Part 40, Subpart B, §40.15) Service agents are not employees of the company but provide services that help companies implement DOT regulations. SAPs and TPAs can be service agents. There is an exception from this rule for owner-operators.
Although the DER is the designated representative for the employer, ultimately the employer remains the responsible party. The employer is responsible for ensuring that every step of the DOT-mandated drug and alcohol testing program is implemented with integrity and within the requirements of the regulations.
SAP - Substance Abuse Professional
A SAP is a specifically trained and certified professional who evaluates employees who have failed drug or alcohol screens or otherwise violated DOT drug and alcohol regulations. Based on their evaluation, SAPs then recommend the path forward for the employee. This recommendation can include treatment, education, or follow-up drug and alcohol screening.
The SAP does not represent the interests of the employer or the employee. The role of the SAP is to provide a professional evaluation of the employee’s status and recommendation for how best to address their particular situation.
Not just anyone can be an SAP. The requirements checklist is extensive.
SAPs must be licensed or certified as one of the following:
- Physician (Doctor of Medicine or Osteopathy)
- Social worker
- Employee assistance professional
- Alcohol and drug abuse counselor
Those SAPs who are certified alcohol and drug abuse counselors must also be credentialed by one of the following agencies:
- National Association of Alcoholism and Drug Abuse Counselors Certification Commission (NAADAC),
- International Certification Reciprocity Consortium/Alcohol and Other Drug Abuse (IC&RC), or
- National Board of Certified Counselors, Inc. (NBCC) and Affiliates/Master Addictions Counselor (MAC).
SAPs must also successfully complete the prescribed training and demonstrate the following:
- Clinical experience and knowledge of the diagnosis and treatment of substance abuse
- An understanding of the SAP’s role and how it relates to the employer’s responsibilities under 49 CFR Part 40
- Current knowledge of Part 40 and related DOT regulations
Once certified, the SAP must keep their skills and knowledge up-to-date through Continuing Education Training.
Employers are required to provide an employee who has violated the DOT drug and alcohol rules with a contact list of SAPs that are acceptable to the employer. There is no single, authoritative list of qualified SAPs. The US DOT Office of Drug & Alcohol Policy & Compliance recommends checking with industry associations. Most credentialing agencies maintain a register of people who they have certified.
TPA - Third Party Administrator
A TPA (also referred to as a Consortium/Third-party Administrator or C/TPA) is a service agent hired by an employer to coordinate some or all of its drug and alcohol testing processes.
There is no standard set of services offered by a TPA. Each employer can identify the services that make the most sense for them and their business. Also, no formal contract is required between an employer and a TPA. Of course, having a comprehensive written agreement with a TPA is advisable as a good business practice.
The DOT does not define any specific qualifications for TPAs, however they are expected to know what is required to comply with 49 CFR Part 40. TPAs that provide services in the commercial motor vehicles sector are also expected to understand and be able to implement Part 382.
The only service a TPA is prohibited from providing is being an employer’s DER. Owner-operators are excepted from this rule and must belong to a consortium that administers their random drug testing.
It Takes a Team to Administer a DOT Drug and Alcohol Testing Program
It takes a team of highly trained professionals to successfully administer the DOT-mandated drug and alcohol program. As an employer you can hire professional service agents to help.
As an employer, you remain responsible “for meeting all applicable requirements and procedures of this part” and “for all actions of your officials, representatives, and agents (including service agents) in carrying out the requirements of the DOT agency regulations.” (49 CFR, Part 40, Subpart B, §40.11)
Designating a DER or engaging the services of a SAP or TPA does not absolve employers of these responsibilities. However, building a team to administer Part 40 can help you make sure that all the requirements are satisfied and public safety is maintained. (Learn more in "8 Things Employers Should Know About DOT Drug and Alcohol Testing".)