As many know, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) protects the confidentiality of “medical records” of a “patient.” Most of us are grateful for HIPAA privacy rules, as we really don’t see our personal health issues as anyone’s business but our own.
HIPAA privacy laws do not apply to federal drug testing. To begin with, there is no “patient.” There is only a “donor,” or the individual who provides the specimen for testing.
Also, there is no “medical” examination. A drug test is not conducted for any medical reasons, for diagnosis or for treatment. It is a forensic safety exam to determine if an employee or prospective employee meets the employer’s work qualifications. In fact it’s not even considered a “fitness for duty” exam.
From DOT MRO Guidance
Remember, as an MRO, you do not need an employee’s written authorization to disclose drug testing information when:
- discussing alternative medical explanations with prescribing physicians and issuing pharmacists,
- reporting results to employers,
- conferring with Substance Abuse Professionals (SAPs) and evaluating physicians; or
- reporting other medical information to certain third parties (see § 40.327).
It is important to remember the Health Insurance Portability Accountability Act (HIPAA) may apply to pharmacies and prescribing physicians. If they insist on the employee providing a release, advise the employee to act immediately on that request.
The Americans with Disabilities Act states: “(1) In general.–For purposes of this title, a test to determine the illegal use of drugs shall not be considered a medical examination.”
US Department of Transportation
The DOT has published its position on this subject stating that HIPAA does not require employers and service agents in the DOT drug and alcohol testing program to obtain written employee authorization to disclose drug and alcohol testing information required by 49 CFR Part 40 and other DOT agencies drug and alcohol testing rules.
If a positive drug test reveals an underlying health issue, then that heath issue may be protected by the ADA. Also, even though addiction is protected under the ADA, being under the influence of drugs or alcohol at work is not.
When these issues arise, you want to make sure your written drug-free workplace policy is up to date, and you’ll want to consult your HR professional.
For further queries and consultation please get in touch with us.