What do you need to know about drug testing in the workplace? Personal medical information is tricky to handle, and you don’t want to step out of line or violate HIPAA when you do so. Your employees have a right to privacy regarding their medical information, including the results of any drug tests. Keep yourself and your employees protected by handling those results with care. Here’s what to know about the confidentiality of drug testing in the workplace; remember these facts next time you drug test an employee.
What Does HIPAA Say?
HIPAA is the primary concern regarding the confidentiality of medical records. It’s short for the Health Insurance Portability and Accountability Act, passed in 1996, and essentially puts a great deal of a person’s medical information behind a wall. Without a documented consent waiver from the patient, other people cannot access certain privileged information. But does it still apply for employee drug testing purposes?
According to many federal statutes like HIPAA and the ADA (Americans with Disabilities Act), employers should treat employees’ drug test results as confidential. Most states align with this policy—personal medical information should not be disclosed to third parties without express written permission. The exception occurs if a court orders the results of that drug test, whether to investigate worker’s compensation claims or possible criminal activity. If an employee has been in an accident and you performed a post-accident drug test, police will require the results of that test to determine fault in the accident.
Employee Files and Confidentiality
So who does have access to an employee’s drug test results? What third parties should be able to see them?
Look at the workplace drug and alcohol policy you’ve written up. Be clear about which substances you’re testing for. American Screening’s supply of drug testing cups makes the process clear and easy. And you should make it clear exactly who will have access to those test results. Because it is confidential information, you will only be able to share it with the candidate’s express written permission. Medical review officers (MROs) will need access to test results to analyze them and determine whether any positive results have a legitimate medical explanation. (For example, a candidate or employee who tests positive for THC could have a medical marijuana card. A positive result for benzodiazepines could stem from a prescribed medication.) They can also determine whether a sample has been adulterated. Select members of your company’s human resources department, like hiring managers, will also need those results to determine eligibility for employment.
To share a candidate or employee’s drug test results with anyone, you’ll need written permission from them to do so—except under very specific and limited circumstances. If a workplace safety issue arises, like if a forklift operator is drowsy on the job, folks on a need-to-know basis will be able to view those results. If a workplace accident occurs and you perform a post-accident drug test, local authorities are on that need-to-know basis.
Drug Test Results and the ADA
The Americans with Disabilities Act doesn’t prohibit you from drug testing an employee. A drug test for illegal substances doesn’t count as a medical examination. The tricky part comes when you see positive test results and you enlist a medical review officer to take a closer look.
As discussed before, the job of the MRO (medical review officer) is to analyze drug test results and determine whether there is a legal explanation for any positive results. Many people with seizure disorders and chronic pain conditions carry a prescription for medical marijuana. If an employee tests positive for THC and you terminate them immediately, you could open yourself up to legal trouble if that employee has a valid prescription. When you write up your drug and alcohol policy, make sure you get permission from employees to share their test results with a medical professional. This extra step ensures that they are treated fairly without having to disclose protected health information (PHI). The drug testing process should be as confidential as possible on all sides.
In addition, alcoholism and drug addiction are classified as disabilities under the ADA. This doesn’t mean the ADA protects employees who are drunk or high on the job. You don’t need to provide reasonable accommodations for someone whose current alcohol or drug use inhibits their job performance. A positive drug test result for alcohol may point toward a substance abuse disorder, but the ADA doesn’t recognize it as a disability if it’s an ongoing problem. However, if an employee requests time off to attend rehab, you would be required to grant that accommodation.
Exercise caution when performing drug tests in the workplace. To understand an employee’s results fully, you’ll need the assistance of a medical professional like an MRO. And for that assistance, you’ll need that employee’s written consent. Without that medical knowledge, you may read a positive result for methadone as grounds for termination. But if the employee in question takes methadone as prescribed as they recover from a heroin addiction, the use of that drug is protected under the ADA.
When you ask employees for authorization to share their drug test results with other parties, be clear about whom you’re sharing those results with. Employees should know that those results will only be shared with a few select people, like your company’s hiring manager and a medical review officer. Demystify the testing process by ensuring employees that their results will only be shared with a few specific, qualified people.
Performing drug tests on employees is a good practice for employers to ensure safety and productivity in the workplace. Before you purchase your drug testing cups and begin the process, review the workplace drug and alcohol policy you drew up. Make sure you keep your employees’ rights in mind as you decide how to handle their drug test results. Drug tests are sensitive medical information and should be kept confidential to a few select parties, and your employees should know who those parties are. These things to know about the confidentiality of drug testing in the workplace will help keep you and your company running efficiently and safely.
