Does a Failed Drug Test Show Up on Your Record?

Under the Health Insurance Portability and Accountability Act (HIPAA), doctors and medical practitioners can only share your medical information/ Personal Health Information on a need-to-know basis and in a way that is secure and protects your privacy. In other words, a failed drug test is not a public record unless the test led to a conviction for a crime or parole revocation.

However, there are some employers that may keep your drug and alcohol test records on file for 3 years. Additionally, there are some specific cases where your drug test may become public record.

Note: Under ADA (Americans with Disabilities Act), A test for illegal drugs is not a medical examination. If the results of a test reveal the use of a lawfully prescribed drug, such results are medical records and thus must be kept confidential.

Quick take

• Federal law does not require employers to have a drug free policy.
• A pre employment drug test before hiring could be a form of discrimination under ADA.
• The law requires Department of Transportation workers to take mandatory drug tests. The drug testing results for a DOT drug and alcohol test stays on your record for three years. DOT workers include school bus drivers, truck drivers, coast guard members, pipeline workers, FAA employees, pilots, and train engineers.
• Drug tests are not public records -if it does not result in conviction or parole revocation.
• You may expunge a drug-related criminal record in some states.
•  Companies cannot share a positive drug test results without your authorization or court order.
• If an employer shares your medical history, including drug test results without your approval or court order. You may take civil action on the grounds of discrimination or invasion of privacy.
• If you sign a release form, a doctor or “covered entity” may share your confidential medical record with third parties.
• HIPAA (Health Insurance and Accountability Act) protects your medical information from unlawful or unauthorized dissemination.
• Under HIPAA, drug test results are not public records. Also, employers can only see a “pass or fail,” nothing more.

Tip: employers should ensure that their drug testing policy is compliant with HIPAA, National Labor Relations Act (NRLA) and the Americans with Disabilities Act. Failure may lead to civil action.

References

• Americans with Disabilities Act.
• Equal Employment Opportunity Commission
• DOT (US Department of Transportation)
• The Omnibus Transportation Employee Testing Act of 1991

Do you have to disclose a failed drug test?

Yes and no. What do I mean? Assuming that you are looking for a new job, you might be worried that a former employer may share a failed drug test with a potential new employer.

 Most privately-owned companies do not share failed drug tests or medical records because of the possibility of legal action. Remember. As mentioned, medical records, including drug tests, are not public records. Why?

 A guideline released by the Equal Employment Opportunity Commission EEOC, states that:

• The use of an individual’s criminal history when making employment decisions may violate Title VIII of the Civil Rights Act of 1964.

What you need to remember is that failing a drug test will not show up on a criminal record unless it leads to a criminal conviction or the revocation of parole. Therefore, a former employer cannot share drug test results without your authorization.

In other words, a drug test showing up in background checks depends on the following factors:

• Is it a government or privately run company? If you are applying for a government job, military position, or law enforcement work, you may have to disclose a failed drug test depending on state law.
• Did the drug test lead to conviction? If the test led to conviction or parole revocation, the records will show up in background checks.
• If you take a drug test in compliance with a governmental organization’s requirements, the records are public.

Note. Most privately owned businesses and organizations do not disclose failed drug tests because it may lead to legal issues involving invasion of privacy, or discrimination.

Can employers see if you failed a drug test?

As mentioned, a failed drug test that did not result in a conviction will not show up on background checks. For company sanctioned tests, your employer will only see a pass or fail in your results. However, according to the CDC, the law permits “covered entities” to use or disclose a positive test result without your authorization under the following situations.

• For research, under certain conditions.
• When required by law or law enforcement.
• Victims of abuse
• For judicial and administrative proceedings
• To lessen or prevent a threat to health or safety.

Remember, employers are not “covered entities” meaning they cannot use or disclose your medical record without court approval or your authorization. In short, the law allows no one to look at your health information without your authorization or court order.

Who can see my drug test results?

Remember that as an employee. You have the right to refuse a drug test. If you agree to one, you sign away some of your rights or authorize your employer to view your record. Because of that, individuals who have access to your drug test results vary. It could be:

• Selected human resources employees.
• The organization’s safety manager.
• Your designated employer representative.
• A substance abuse professional.

Can a company fire you for a failed drug test?

That depends on company policy, meaning a failed drug test may lead to disciplinary action or dismissal. The question is, what was in the testing agreement?

Before you submit yourself to a drug test, your employer requires you to sign some documents. What the organization will do with the test results should be on the agreement. Therefore, make it a habit to read before you sign. Remember, companies change drug policies, and it is within their rights to do that. But they cannot force you to agree to a test.

What if you refuse testing?

Did you sign up for a drug testing policy? If not, you may sue your employer if he dismisses you for refusing a test. On the other hand, if you signed a policy, then refuse testing, the employer may dismiss you or take punitive actions

Note: While a lab run drug test is much more accurate than a take home test, reporting is done by ‘cut off levels’. This means that if you are testing at home you can broadly get similar results as what would be reported by a lab. Example of an effective 5 panel take home instant drug test kit.

Failed drug tests and marijuana discrimination

With the ongoing legalization of marijuana, drug testing laws can get complicated. The thing is, the law in most states does not prohibit employers from establishing and enforcing drug policies, but medical cannabis will show the same results as recreational cannabis. Because of that, dismissing an employee for cannabis use may result in legal backlash.

What you need to remember is some states prohibit discrimination based on marijuana use, and some allow employers to dismiss employees for drug use. We recommend consulting with a local attorney or checking state law.

Also:

• Fourteen states have low THC/High CBD laws
• Thirty-three plus states have passed comprehensive cannabis laws.
• 11 states have legalized recreational marijuana.
• Working under the influence of marijuana could be grounds for dismissal or punitive action.

What you need to remember

• Some states, including Nevada, have made it illegal to refuse someone employment because of a failed marijuana test.
• If the job or position may adversely affect the safety of others, say a firefighter or law enforcement position, or if the position requires you to operate machinery or motor vehicles, the employer has the right not to hire you if you failed a drug test.

How long does a failed drug test stay on record?

Note that company-sanctioned drug tests are confidential between you and the company. Because of that, how long the record stays depend on company policy. On the other hand, prior drug-related convictions remain visible on background checks until you expunge your record.

When the court expunges or seals your criminal record. The documents are no longer public records. Meaning your criminal record will not show up on background searches.

Find out if you can expunge your record here.

The Omnibus Transportation Employee Testing Act of 1991: Does a failed drug test show up on a background check?

Companies regulated by DOT (US Department of Transportation) keep records of failed drug tests for up to three years. Meaning, if you are a trucker, aviator, or if you work in the pipeline or mass transit industry, a failed drug test will show up in background checks for up to three years.

Remember, the law does not allow other employers to share failed drug tests with third parties without your authorization. That makes it vital to read a testing policy before submitting to a drug test.

Health Insurance Portability and Accountability Act: What you need to know

• Companies cannot disclose failed drug test results to third parties except as required by law or under a court order. This may happen if there is an ongoing investigation, litigation, or a claim related to the test.
• Company policy determines who can see drug test results and how the records are used inside the organization.
• Employers must keep drug test results confidential.
• Employers may obtain written consent from employees before sharing drug test results with a third party.
• Organizations have the right to create policies on what to do if an employee fails a drug test. It could be firing, denying employment, or mandatory rehabilitation.
• Inappropriate disclosures may result in a civil action.

State drug testing laws

State laws determine several factors, including:

• Random testing requirements and restrictions.
• Termination or restrictions based on drug test results.
• Employee drug test notification.
• Drug-free work environment workplace policies.

Because of that, if you are an employer, it is vital to ensure that your testing policies are compliant with state laws. The reason for that is, if your testing policy violates a state statute, an employee may find ground to take civil action. Start with the basics, that is, make sure that you have a Medical Review Officer, work with a SAMHSA (Substance Abuse and Mental Health Services Administration) approved lab, and use a qualified collection facility.