Can an Employer Tell the Family if a Worker Does Not Pass a Drug Test

Urgent message: In addition to drug testing their ain employees, many urgent care centers offer drug testing equally a service to other employers. Therefore, it's important to understand the laws affecting the privacy of drug screen results.

Alan A. Ayers, MBA, MAcc is Vice President of Strategic Initiatives for Practice Velocity, LLC and is Do Management Editor of The Periodical of Urgent Intendance Medicine

Introduction
It'south standard procedure throughout the country for employers to require employees and applicants to submit to drug testing both earlier and after being hired. There isn't any overarching federal law that requires or prohibits drug testing by private employers, but many states take enacted laws regarding employee drug testing. However, the results of a drug test are generally protected by both federal and state laws.¹

This commodity will examine the impact of HIPAA requirements on employee drug examination results, the protections afforded employees, and the potential liability for healthcare providers such every bit urgent intendance centers.

Drug Exam Results as Protected Health Information
HIPAA is a concern for all healthcare organizations, including privately owned urgent care companies. The rules pertaining to patient privacy are reasonably clear, but questions ascend equally to whether drug test results are protected wellness data under HIPAA when performed for employment purposes.

Federal statutes, including HIPAA, the ADA (Americans With Disabilities Deed²), and other employment laws (eg, the Drug-Gratis Workplace Human action (DFWA), the Fair Credit Reporting Act (FRCA), and U.S. Department of Transportation regulations) require companies to care for test results as confidential. Most states regard drug-testing results as confidential, as well.

Drug exam results may not exist disclosed to third parties except every bit required by law or pursuant to a court society. This can include an investigation or litigation apropos a merits related to the drug test, such as an employment upshot, workers' compensation, or a criminal thing.3

Within an employer's organization, policies should state who has access to this personal health information (PHI). This may include the homo resources department and the hiring or supervising manager. An employer should accept restrictions on how (and if) such information tin can exist shared with others. As part of this procedure, employees who undergo a drug exam will typically sign a release at the time of the test to permit the employer to receive the results.

Healthcare provider drug testing policies
It is important to note that the HIPAA Privacy Rule doesn't protect an employee's employment records—even if the data in those records is health-related. And in most instances, the HIPAA Privacy Rule doesn't utilise to the actions of an employer. However, the Privacy Dominion does protect an employee'southward medical or health plan records if she is also a patient of the provider or a member of the wellness plan.⁴ This specifically refers to medical treatment sought in the employer's master business (ie, the employee becomes a patient), in which the medical record would be treated with the same privacy protections as every other patient record. Thus, it makes no deviation if the employer is a healthcare provider, like an urgent care center. Fifty-fifty though an urgent care facility may perform the drug testing in-house, rather than employing a third-party drove point—which may offer greater privacy protections—the rules for PHI are applied beyond the board for all employers. An urgent care owner should add procedures on admission and disclosure of results to its drug testing policy when the drug testing is performed onsite.

Policies ordinarily land that testing laboratories may behave testing only for substances included on a disclosure listing given to the private, and may not comport testing unrelated to drug usage.

Employers commonly proceed all records concerning exam results in medical files that are maintained separately from the visitor's personnel files. Drug test results, like all medical information virtually urgent care center employees, should exist kept confidential. According to the Equal Employment Opportunity Commission, "if the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must exist treated as a confidential medical tape."^v

The individual, department, or the facility that receives drug test results should share drug test results but as needed. A manager may just demand to know that an employee or applicant passed or failed the exam without any farther details. At that place are other situations when it's necessary to disclose the test, such equally unemployment eligibility determination, workers' compensation claims, and disability benefits. The employee's consent may be required, depending on the specific situation and applicable regulations. A prudent strategy would be to obtain written consent for release from the applicant or employee whenever possible.^{half dozen}

Typically, private employers volition take their own policies in place if an individual tests positive for drugs. These may include mandatory rehabilitation, firing, or not being hired for the position initially. Although some employers elect to exercise so, a private employer such as an urgent care facility isn't required to allow an employee or prospective employee to complete rehabilitation or to let him a "second hazard" before termination for drug use.

HIPAA Authorization
HIPAA stipulates that "covered entities" must provide HIPAA-compliant authorization earlier releasing drug and alcohol test results. Collection facilities or labs employed for the drug test volition typically accept an authorization grade.
Urgent care employers should likewise remember that HIPAA doesn't preempt more rigorous country law requirements.^seven A land may take drug testing laws and privacy laws that apply to drug test as a matter of personal privacy, with tougher standards that the federal constabulary.⁸

Decriminalized Marijuana
Many questions have arisen with the decriminalization of marijuana in several states.^nine Specifically, employers are concerned nigh employees who are under a doctor'south care with a legal prescription for marijuana. The fact that the employee is under the intendance of a doctor is HIPAA-protected, merely employees tin can be tested for drugs. In almost cases, the question focuses on the rationale for the drug exam. The employer must take reasonable suspicion that the employee has been taking drugs before he can exist tested. This means that the employer has a legitimate reason to think that the employee has been taking drugs.

Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania, and Rhode Island now have laws with explicit language with some degree of employment protection, typically prohibiting adverse activity confronting an employee or applicant based on their condition as a medical marijuana cardholder or participation in a medical marijuana program. For example, us of Arizona^ten and Delaware⁸ have protections in place prohibiting whatever penalization for medical marijuana users who aren't dumb on the job, but non for recreational users.

Note that if an employee is required to take a drug test, the employer should care for all their employees adequately and equally. Failure to exercise so may discipline the employer to a bigotry activeness.

Liability
Healthcare providers similar urgent care centers must be concerned with the potential liability for the inappropriate disclosure of an employee'southward drug results. The release of exam results—fifty-fifty to the law—without a court club or the employee or bidder'south written consent could result in the urgent care existence subject to litigation.^xi In addition, disclosure of drug exam results to unauthorized third parties could lead to an employee or applicant bringing a lawsuit based on negligence, invasion of privacy, intentional infliction of emotional distress, defamation, or violations of HIPPA and other federal law. A jury can honour additional amercement for pain and suffering.³

To appointment, few cases have held for individual sector employees confronting random drug testing, either in refusing to accept the test on privacy grounds and were fired, or when drug test results were inaccurate. Virtually state courts have held that the employment-at-will doctrine exceeds employees' privacy rights. The California Supreme Court is the only court to concur differently, because that state is one of the few whose state Constitution includes a right to privacy. As such, state private sector employees (not job applicants) have been found to exist protected past the right to privacy.¹²

Information technology's vital for employers to have articulate, consequent definitions of what behavior justifies drug testing. Thorough training on how to handle employee testing is a must.

Conclusion
In add-on to complying with HIPAA and state laws, an urgent care operation should have in place a drug testing policy as part of its employment policies. This should be crafted to allow for maximum flexibility for the employer.
In summary, test results and other PHI from a drug test should not be disclosed to another employer or to a third-party private, government agency, or private organization without the prior written say-so of the person tested.

It'south disquisitional that this policy exist communicated and understood by all personnel who might exist impacted. This includes the owner, upper management, frontline supervisors, and the urgent care facility's employees.

References

1. Workplace Fairness. Drug testing. Bachelor at: https://www.workplacefairness.org/drug-testing-workplace. Accessed December xiii, 2017.
2. Americans with Disabilities Human activity of 1990. Available at: https://world wide web.eeoc.gov/eeoc/history/35th/thelaw/ada.html. Accessed December 13, 2017.
3. McDonnell S. Do companies report failed drug tests to the police? AZ Central. Bachelor at: http://yourbusiness.azcentral.com/companies-written report-failed-drug-tests-police-27003.html. Accessed Dec thirteen, 2017.
4. HHS Role for Civil Rights (OCR). Employers and Health Information in the Workplace, Health Information Privacy. Bachelor at: https://www.hhs.gov/hipaa/for-individuals/employers-health-data-workplace/alphabetize.html. Accessed December 13, 2017.
5. U.S. Equal Employment Opportunity Commission. Americans with Disabilities Act: Questions and Answers. Available at: https://www.ada.gov/employmt.htm. Accessed December 13, 2017.
6. Society for Human being Resources Direction. Confidentiality and sharing drug test results. Available at: https://world wide web.shrm.org/resourcesandtools/tools-and-samples/hour-qa/pages/confidentialityandsharingofdrugtestresults.aspx. Accessed December xiii, 2017.
7. Friedland AS, Lazzarotti JJ, Perry RR, et al. HIPAA privacy dominion impacts employer drug testing procedures. Jackson Lewis website. Bachelor at: https://www.jacksonlewis.com/resources-publication/hipaa-privacy-dominion-impacts-employer-drug-testing-procedures. 16 Delaware Code Online. The Delaware Medical Marijuana Act. Available at: http://www.delcode.delaware.gov/title16/c049a/index.shtml. Accessed December 13, 2017.
8. National Conference of State Legislatures. Marijuana overview. Available at: http://www.ncsl.org/research/ceremonious-and-criminal-justice/marijuana-overview.aspx. Accessed December xiii, 2017.
9. Arizona Medical Marijuana Deed ("AMMA"), A.R.Southward. § 36-2801. Available at: http://3g6615161omg2tl5k03v3pnt.wpengine.netdna-cdn.com/prop-203.pdf. Accessed December 13, 2017.
10. Vezina v United states, Civ. A. No. 2008 U.S. Dist. LEXIS 24437, 2008 WL 833747, *1 (W.D.La. Mar. 27, 2008).
11. National Workrights Establish. Drug testing in the workplace. 2010. Bachelor at: http://workrights.us/?products=drug-testing-in-the-workplace. Accessed Dec 13, 2017. California Laws on Drug Testing, California Employment Law, NOLO. Available at: https://world wide web.nolo.com/legal-encyclopedia/california-laws-drug-testing.html. Accessed December 13, 2017.

President of Experity Networks and is Practice Management Editor of The Journal of Urgent Care Medicine

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Source: https://www.jucm.com/implications-hipaa-employee-confidentiality-rules-positive-drug-test-results/