Short Answer

An employer does not select a single Substance Abuse Professional (SAP) and require the employee to use only that person. What 49 CFR § 40.287 actually requires is that the employer give the employee a list of SAPs who are readily available and acceptable to the employer, with names, addresses, and phone numbers, provided at no charge. The employee generally chooses which SAP from that list to use. The employer's role is to curate a list of acceptable options, not to unilaterally assign one specific SAP with no choice involved.

Detailed Explanation

What 40.287 Actually Requires

The regulation requires the employer to provide a list, not a single name. That list must contain SAPs the employer finds acceptable and readily available, and it must be given to the employee at no cost. The employer can provide this list directly or delegate the task to a C/TPA or other service agent acting on its behalf.

A List Versus a Single Assignment

There is an important difference between providing a list of acceptable SAPs and assigning one SAP to an employee with no alternative offered. The plain language of 40.287 describes a list. An employer that only ever offers one name, with no other acceptable options presented, is not following the structure the regulation describes, even if that single SAP is fully qualified. Employers should build and maintain an actual list, even a short one, rather than routing every employee to the same individual by default.

Why the List Requirement Exists

Giving the employee some choice among acceptable SAPs supports the SAP's role as an independent evaluator rather than an extension of either the employer or the employee. The SAP's evaluation is not supposed to favor either side (49 CFR § 40.291(b)). A list, rather than a single mandatory assignment, reinforces that independence.

Can the Employer Limit Who Is on the List?

Yes. The regulation specifically says the list should include SAPs who are acceptable to the employer. An employer is not required to list every SAP in the area, and can reasonably limit the list to SAPs it has vetted, so long as a genuine list, rather than a single name, is what the employee receives.

Applicable Regulations

• 49 CFR § 40.287, requiring a list of SAPs acceptable to the employer, provided at no charge
• 49 CFR § 40.291, describing the SAP's role as an independent evaluator, not an advocate for either party

Professional Observation

One misunderstanding I frequently encounter is an employer or C/TPA handing an employee a single SAP's contact information and describing it as "the" SAP, rather than presenting an actual list of acceptable options. This may happen for practical reasons, such as limited SAP availability in a rural area, but employers should be careful about how this is documented and should confirm with their C/TPA or legal counsel whether their current practice matches the list requirement in 40.287.

Common Misconceptions

Misconception

The employer picks the one SAP the employee must use.

Reality

49 CFR § 40.287 requires the employer to provide a list of acceptable SAPs, not to assign a single SAP with no alternative.

Why the Confusion Occurs

In practice, some employers or C/TPAs only have a working relationship with one SAP, which can create the impression that this SAP was "selected" for the employee, even when a broader list should have been offered.

Frequently Asked Questions

Does the employee have to pick from the employer's list?

The list requirement in 40.287 concerns SAPs acceptable to the employer. The specifics of whether an employee may use a SAP outside that list can vary, so this should be confirmed with the employer's C/TPA or legal counsel.

Can the employer charge the employee for the list?

No. 49 CFR § 40.287 requires the list to be provided at no charge to the employee.

Related Articles

• What Are an Employer's Responsibilities After a DOT Violation?

Primary Authorities/Sources

• 49 CFR § 40.287
• 49 CFR § 40.291

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