Can my employer tell others the results of my drug test?

It depends on who your employer is telling and why.  In Pennsylvania, employers are permitted to reveal drug test results for unemployment compensation determination, as well as worker’s compensation and disability determinations.

What The Law Says About Drug Test Results

Some employers are required by federal law and agency policy to reveal drug test results.  The Department of Transportation states that employers of truck drivers, train engineers, and airplane pilots who fail drug tests must disclose that information to the employee’s next employer if the employee has signed a specific written release.  This is to ensure that the employee completes the return-to-duty process and a follow up drug program.

Health Insurance Portability and Accountability Act (HIPAA)

HIPAA does not forbid an employer from disclosing drug test results.  HIPAA forbids the drug test company from revealing the results of a drug test except when the patient signs a consent to release information. Employers generally require these consent forms to be signed before the drug test, or the employer will consider the employee to have refused the drug test. If an employee refuses to take a drug test, the employer can terminate the employment relationship.

The Americans with Disabilities Act (ADA)

The Americans with Disabilities Act also does not protect an employee’s drug test results in most situations.  The ADA does not consider a test to determine the illegal use of drugs a medical examination, therefore, employers can conduct such testing and make decisions based on the results. There is no restriction on whom the employer can inform about the drug test results.

Important note: Although the ADA does not protect the confidentiality of an employee’s negative drug test results when the test shows use of illegal drugs, it does protect the results when they reveal use of a lawfully prescribed drug.  Then, the drug test result is considered a confidential medical record and cannot be disclosed.

Sue Your Employer For Revealing Drug Test Results

Although there may not be a Pennsylvania statute or federal law preventing employers from disclosing their employees’ drug test results, there are a few common law causes of action an employee can bring against their employer.

Invasion of Privacy

The first is invasion of privacy.  An employee can bring suit for invasion of privacy when their employer has shared private information that would be highly offensive to a reasonable person and is not a legitimate concern of the general public.  An employer may have a difficult time arguing that an employee’s drug test results were a legitimate concern to anyone who did not need to know the results.

Defamation

In addition, if the drug test results were a false positive, the employer can be liable for defamation if he or she informs others that the employee failed the drug test.

Best Rule of Thumb for Employers

It is best practices for an employer to keep the drug test results of potential, current, or former employees confidential.  Employers should keep this information separate from the employee’s general employment file.  The employer should also never reveal the results of a drug test to anyone who does not need to know.

Contact a KM&A attorney at (412) 626-5626 or email at lawyer@lawkm.com if you believe that you have a case under the law.