Short Answer

49 CFR § 40.309 places responsibility on the employer to actually carry out the Substance Abuse Professional's (SAP) follow up testing plan. The employer must ensure the required tests are unannounced, with no predictable pattern, and spread reasonably throughout the period the SAP has directed.

Detailed Explanation

The Employer's Role Versus the SAP's Role

Section 40.307 gives the SAP authority to design the follow up testing plan, including the number of tests, whether they cover drugs, alcohol, or both, and how long the plan runs. Section 40.309 shifts responsibility to the employer for putting that plan into action. The SAP sets the requirements; the employer executes them.

Unannounced and Unpredictable

The tests must be unannounced. The employee cannot know in advance when a specific follow up test will occur. Beyond simply being unannounced, the tests must also have no predictable pattern, meaning the employer cannot fall into a routine, such as testing on the same day of the month or at evenly spaced, foreseeable intervals, that would let an employee anticipate when a test is coming.

Reasonably Spread Through the Period

The employer must spread the required tests reasonably across the entire period the SAP has directed, rather than, for example, front loading all six tests into the first few weeks and then conducting none for the remainder of the twelve month (or longer) period the SAP established. This keeps the follow up testing plan functioning as an ongoing deterrent and safeguard throughout the full period the SAP intended.

Applicable Regulations

49 CFR § 40.309 requires the employer to ensure the SAP's follow up testing plan is carried out on an unannounced basis, with no predictable pattern, spread reasonably through the period the SAP directed.

Professional Observation

In my experience, employers who use a Consortium/Third Party Administrator (C/TPA) or a well organized internal system tend to have an easier time meeting this requirement, since scheduling unannounced tests without a predictable pattern takes deliberate planning. An employer that tests casually, without a documented random selection method, risks creating exactly the kind of predictable pattern this section prohibits.

Common Misconceptions

Misconception

As long as all the required follow up tests happen within the required time period, it does not matter when they are scheduled.

Reality

Section 40.309 specifically requires the tests to be unannounced, unpredictable, and reasonably spread through the period. Simply completing the required number of tests within the deadline is not enough if the timing itself follows a predictable pattern.

Why the Confusion Occurs

Because the SAP's plan under 40.307 focuses on the total number and type of tests, it is easy to overlook that 40.309 adds separate, independent requirements about how those tests must be scheduled and administered.

Frequently Asked Questions

Who is responsible if follow up tests are not properly spread out or become predictable?

Section 40.309 places this responsibility on the employer. Employers who use a C/TPA or other service agent to administer testing remain accountable for ensuring the requirement is met.

Can an employee request a specific schedule for follow up testing?

No. The unannounced, unpredictable nature of follow up testing is a regulatory requirement designed to prevent the employee from anticipating tests, so a fixed or requested schedule would not satisfy 40.309.

Related Articles

• What Does 49 CFR 40.307 Require?
• Who Administers Follow Up Testing?
• What Is Follow Up Testing?
• What Are a DER's Responsibilities?
• What Does 49 CFR 40.303 Require?

Primary Authorities

• 49 CFR § 40.309, Employer's follow up testing responsibilities
• 49 CFR § 40.307, SAP's follow up testing plan

Questions About Your Follow Up Testing Requirements?

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