Short Answer

49 CFR § 40.295 prohibits both the employee and the employer from seeking a second Substance Abuse Professional (SAP) evaluation to obtain a different recommendation than the one the first SAP gave. If an employee improperly obtains a second evaluation anyway, the employer is not permitted to rely on it for any purpose.

Detailed Explanation

Paragraph (a): The Employee May Not Shop for a Second Evaluation

Once a qualified SAP has completed an evaluation and issued a recommendation under 40.293, the employee cannot go looking for a different SAP in hopes of a more favorable recommendation. The first SAP's individualized evaluation is the one that governs the employee's Return to Duty path.

Paragraph (b): The Employer May Not Seek a Second Opinion Either

The same restriction runs the other direction. An employer cannot seek a second SAP evaluation in hopes of a stricter recommendation than the first SAP gave. If an employee does improperly obtain a second evaluation, the employer is barred from relying on that second evaluation for any purpose, including as a basis for education, treatment, or follow up testing decisions.

Applicable Regulations

49 CFR § 40.295 prohibits second SAP evaluations sought by either the employee or the employer for the purpose of obtaining a different recommendation, and bars an employer from relying on an improperly obtained second evaluation.

Professional Observation

In my experience, this rule surprises some employees who assume that getting a second opinion is always an option, the way it might be for an unrelated medical diagnosis. The Return to Duty process treats the initial SAP's evaluation as final unless the same SAP later revises it based on new information under 40.297. Understanding this early tends to prevent wasted time and expense on an evaluation that cannot actually be used.

Common Misconceptions

Misconception

An employee who disagrees with a SAP's recommendation can simply see a different SAP for a second opinion.

Reality

Section 40.295 prohibits seeking a second SAP evaluation to get a different recommendation. The correct path if new circumstances arise is for the same SAP to consider that new information, as described under 40.297, not to start over with a different SAP.

Why the Confusion Occurs

Second opinions are common and accepted in many other medical and clinical contexts, so it is a reasonable assumption to carry into the DOT Return to Duty process. Subpart O deliberately works differently to keep the process consistent and to prevent evaluation shopping.

Frequently Asked Questions

What if the employee genuinely believes the first SAP made a mistake?

The regulation does not create a second evaluation option for that situation. If new or additional information becomes available, 40.297 allows the original SAP to revise the evaluation. Concerns about how an evaluation was conducted are best raised with the SAP directly or, where appropriate, through the relevant DOT agency or credentialing body.

Does this rule apply if the employee changes employers?

The prohibition on seeking a second evaluation to obtain a different recommendation is not tied to a specific employer relationship. It's a general topic worth confirming with a DOT qualified SAP if an employee's circumstances involve a change in employer during the Return to Duty process.

Related Articles

• What Does 49 CFR 40.297 Require?
• Can I Change DOT SAPs?
• What Does 49 CFR 40.293 Require?
• What Is a DOT SAP Not Allowed to Do?
• Common Misunderstandings About the Return to Duty Process

Primary Authorities

• 49 CFR § 40.295, May employees or employers seek a second SAP evaluation?

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