Statements About an Employee's Ability to Return to Work
A number of you have been asked by employers to add a statement to their SAP reports to the effect that “this employee may now be returned to work.” I suggest that you not comply with that request. Please look at 40.311, either in the regulations or in the “Follow-up Evaluation Process” section of the "SAP Guidelines". DOT hasn’t requested that statement to be included in your SAP report. In addition, 40.305(c) states:
“…you must not make a ‘fitness for duty’ determination as part of this re-evaluation… It is the employer, rather than you, who must decide whether to put the employee back to work in a safety-sensitive position.”
Making a statement about the employee’s return to work could be misconstrued by the employer as a directive, which could have consequences of liability for you as the SAP. I suggest that you stay away from making any statements that even tell the employer that it’s “ok” to order a return-to-duty test. The employer is well aware that if you report compliance, the employer can order a return-to-duty test. The employer doesn’t have to be told. As a SAP, your only task is to report that the employee has “successfully complied” with your recommendation. (40.301).
If an employer is asking whether they can conduct a return-to-duty test, direct the employer to 40.305(a), which says:
“This [return-to-duty] test cannot occur until after the SAP has determined that the employee has successfully complied with prescribed education and/or treatment.”
A SAP’s report of successful compliance is all that the employer needs. He can then decide whether to conduct a return-to-duty test. An additional statement from you, the SAP, is neither required nor necessary.