Drug tests are now a standard part of the workplace. Federal agencies have identified knowledge about the illegal use of illicit drugs as an essential safety initiative that employers should take seriously. As a result, many employers are searching for new ways to eradicate drug use from their workplaces. But with this in question, do employees have privacy in their drug test results?
Employees’ drug test results and medical information must be kept confidential. Although HIPAA does not directly apply to employers, it covers the employee’s health care plan and his personal health information.
Read on to know the impact of HIPAA laws on drug testing and disclosure of drug test results.
HIPAA Laws for Drug Testing
The Health Insurance Portability and Accountability Act (HIPAA) aims to safeguard a person’s medical records and health information. Its standards guarantee that Personal Health Information (PHI) is secure, and one must uphold a patient’s right to privacy.
Governed by the U.S. Department of Health and Human Services (HHS), PHI consists of medical data linked to a specific person.
Examples include a patient’s medical history, information about their current medical treatment, and demographic data (such as their name, age, phone number, or email address).
An employee’s PHI will still be safeguarded by their health care plan even if the HIPAA does not directly govern employers.
HIPAA regulations generally ensure that only the necessary information is exchanged and that only the essential quantity of data is provided.
Additionally, the information must be disseminated in a method that ensures security and privacy.
The result of a drug test should remain private. Along with other health information about an employee, it should be stored in a separate file from other personnel data.
One must only disclose PHI to those who “need to know.” Policies and procedures at a workplace should specify the details of any PHI sharing.
An employee will often sign a permission form as part of these procedures to enable their results to be shared with their employer or certain persons inside the company (for example, a Designated Employer Representative).
Without being provided with any other information, an employer may be permitted to know if an employee tested positive or negative for drugs.
Specific rules regarding the publication of test results apply to workplace drug and alcohol testing programs required by DOT standards. The employee’s job record will reflect any positive test results.
Future employers for employment covered by DOT regulations will be informed of this information.
Employers should speak with a local attorney in addition to HIPAA regulations to ensure they comply with any relevant state legislation. The Americans with Disabilities Act (ADA) procedure may also be applicable in rare circumstances.
Can A Company Disclose Drug Test Results?
Employers often keep all test results records in medical files apart from the company’s personnel files. Employees shall maintain the confidentiality of their test results and other protected health information.
When is disclosure of results necessary?
Circumstances, such as determining eligibility for unemployment benefits, workers’ compensation claims, and disability payments, call for the disclosure of the test.
Depending on the particular circumstance and relevant federal and state laws, the employee’s permission may be necessary. It would be wise to obtain employee written authorization before releasing them whenever feasible.
Private companies often have procedures if a person tests positive for drugs. These can include being required to undergo rehabilitation, getting fired, or not being hired initially for employment.
Private companies are not compelled to provide employees or potential employees a “second chance” or to complete rehabilitation before terminating them for drug use, even though some employers choose to do so.
Additionally, the rules protecting your right to privacy vary from state to state. An employer should only provide protected health information about your medical history if it is connected to your job performance, safety, or workplace safety.
The details of each state’s legislation may differ, though. Your company’s formal drug testing policy should specify when and why you may be tested and who may see the findings.
Before disclosing the drug or alcohol test results, “covered entities” are required under HIPAA to obtain written employee authorization that complies with the regulations.
Typically, the collection sites or laboratories used for the drug test will include HIPAA-compliant authorization.
But who can see your drug test results?
Depending on the testing conditions, various people may have access to your test results.
Medical Review Officers (MROs), screening test technicians in collection facilities, certain personnel in the human resources division, safety managers, and the employer’s Designated Employer Representative are a few examples of those who could see the findings of your drug test.
A substance abuse professional (SAP) might sometimes see the results.
MROs do not require written consent forms from employees to verify drug test results; they speak with prescribing doctors to discuss alternative medical explanations.
Only communicate drug test findings as necessary by the person, division, or establishment that gets them. A manager may need to know whether a candidate or employee passed or failed the exam.
What About Confidentiality?
Test findings should be treated with the utmost confidentiality. Legal action may be taken as a consequence of the careless disclosure of test results for reasons such as invasion of privacy, deliberate infliction of emotional distress, and defamation.
Such records must be kept in a separate, private medical file according to the federal statute (ADA). The HIPAA privacy provision may make it difficult for some employers to request specific drug test results from the lab.
Unless there are particular and restricted circumstances, people with a need-to-know basis will be able to examine such findings in the event a workplace safety concern develops, such as if a forklift operator is working while fatigued.
Local authorities also have a “need-to-know” basis if you conduct a post-accident drug test after a workplace accident.
What If I Don’t Agree to Disclosure?
You will be seen as refusing to take the exam if you don’t agree to let your employer know the test findings. A revocation may be one of the effects of refusal.
The phrase “refusal to test” refers to various possible employee behaviors that result in an active or fundamental refusal to take a drug or alcohol test.
Different state and federal regulations apply to what constitutes a refusal to submit to a test and the remedial steps that an employer may take in response to a refusal. The reluctance to submit is another name for the unwillingness to take the exam.
You always have the option to decline a workplace drug test as an employee.
However, you may not have many options if you lose your job as a result of your rejection. (In fact, if you’re fired for defying a drug test, you could not be eligible for unemployment benefits in several jurisdictions.)
Your employer must prove that there was cause to fear you posed a safety risk while working or that you were incapable of doing your job.
However, if you can prove that you were treated differently from other workers in your position, you may be able to get your job back.
Your best option may be to claim that the testers did not adhere to the stringent criteria for employer drug testing procedures outlined in your state legislation if you had a drug test and were wrongfully suspended or demoted.
Also, keep in mind that employers can adopt measures to prevent specimen manipulation, such as asking test-takers to remove their clothes and put on hospital gowns or assigning a test monitor to measure the urine temperature and color of the toilet water, for example.
Although most courts have deemed it appropriate to have a monitor listen as a pee test is conducted, others have ruled it an unreasonable invasion of privacy for the monitor to observe. As a result, some degree of judgment is necessary.
On the other hand, most privately held businesses do not require former employers to provide test results as part of a background check.
Most American employees never get their employer notifications when a drug test fails. However, many government jobs need this information and are allowed to look for it.
States have different laws as well. Before sharing or requesting information about a drug test, verify your local laws and regulations.
Even if tests are lawfully revealed, the business may be subject to a lawsuit from the former employee alleging discrimination or invasion of privacy.
In conclusion, without the person’s prior written consent, test results and other PHI from a drug test should not be released to another employer, a third-party person, a governmental agency, or a private group.
It is crucial that this policy be explained to and understood by all employees who might be affected by it.