As we enter 2026, the demand for CDL drivers remains at an all-time high. However, fleet owners and HR managers often hesitate when they see a “Prohibited” status recently changed to “Not Prohibited” in the FMCSA Clearinghouse. Is hiring a SAP-cleared driver a smart business move or a ticking liability time bomb?
At AACS Counseling, we work with both sides of the industry. Here is the legal and financial reality for employers considering second-chance hiring this year.
Can employers legally refuse SAP-cleared drivers?
The short answer: Yes. While the DOT provides the pathway for a driver to return to duty, it does not mandate that any specific company hire them.
- Employment-at-Will: In most states, employers can maintain a “Zero Tolerance” policy. If your company policy states that a drug or alcohol violation is grounds for permanent disqualification, you are generally within your legal rights to refuse hire.
- The “Consistency” Rule: To avoid discrimination claims, your policy must be applied equally. You cannot hire one SAP-cleared driver and reject another without a documented, non-discriminatory reason (such as differing levels of experience or other background red flags).
Insurance premium impact: The double-edged sword
Insurance is often the primary reason companies say “No” to SAP drivers. However, the 2026 insurance market views risk more dynamically than in the past.
- The Risk Surcharge: Some traditional insurers may increase premiums for fleets that hire drivers with a violation within the last 3-5 years.
- The “Monitored Driver” Discount: Paradoxically, some modern insurers view SAP-cleared drivers as lower risk. Why? Because these drivers are under a mandatory, unannounced follow-up testing plan for up to five years. They are arguably the most closely monitored employees on the road, which can lead to favorable underwriting for safety-conscious fleets.
Negligent hiring risks: How to protect the company
The biggest fear for any fleet owner is a “Negligent Hiring” lawsuit following an accident. If a driver relapses and causes a crash, the plaintiff’s attorney will look at your hiring files immediately.
To prevent liability, employers must prove they exercised “Reasonable Care” by:
- Clearinghouse Verification: You must have a record of the “Full Query” showing the driver was “Not Prohibited” at the time of hire.
- SAP Documentation: Retain the SAP’s official “Notice of Compliance” and the specific follow-up testing plan.
- Adherence to the Plan: If the SAP ordered 6 tests in the first year and you only conducted 4, you are legally vulnerable. Missing even one follow-up test can be used as evidence of negligence.
Documentation employers must retain
Under 49 CFR Part 40, if you hire a SAP-cleared driver, your audit file must be bulletproof. You are required to keep:
- The SAP’s Initial Evaluation Report (if provided by the driver/SAP).
- The Follow-up Evaluation Report (confirming completion of treatment/education).
- The Follow-up Testing Schedule (created by the SAP).
- Results of every Return-to-Duty and Follow-up test performed.
- Clearinghouse Query Results for the duration of the driver’s employment.
Frequently Asked Questions
Is it legal to hire a SAP-cleared driver?
Absolutely. Federal law expressly permits the hiring of SAP-cleared drivers. Once they are marked as “Not Prohibited” in the Clearinghouse and have a negative Return-to-Duty test, they have the same legal standing to drive as any other CDL holder.
Can insurance deny coverage?
An insurance provider can refuse to cover a specific driver under your policy if they deem the risk too high. Before hiring, always send the driver’s MVR and Clearinghouse status to your insurance agent for a “pre-approval” to ensure your rates won’t skyrocket.
What happens if a rehired driver relapses?
If a driver fails a test during their follow-up plan, they must be removed from safety-sensitive duties immediately. As long as you followed the SAP’s testing plan and documented everything, your company is shielded from many “negligent retention” claims. The failure is on the driver, not the company’s oversight.
Building a safe, second-chance fleet? At AACS Counseling, we provide employers with the clear, compliant documentation needed to hire with confidence. We handle the DOT SAP process so you can focus on the road.
Call our Employer Liaison at 800-683-7745 to discuss SAP compliance for your team.