Does a Failed Drug Test Show Up on Your Record?

A failed drug test does not become a public record unless it leads to a criminal conviction or parole revocation. HIPAA rarely applies to employer-ordered testing, since most employers are not "covered entities"; the Americans with Disabilities Act, state law, and workplace privacy rules govern who can see the results instead.

The Health Insurance Portability and Accountability Act (HIPAA) requires "covered entities," meaning health plans, health care clearinghouses, and health care providers who transmit certain information electronically, to share medical information only on a need-to-know basis and in a way that protects patient privacy. Most employers are not covered entities, so an employer-ordered drug test, such as a pre-employment or random workplace screening, usually falls outside HIPAA altogether. Even when a covered entity is also an employer, HIPAA excludes "employment records held by a covered entity in its role as employer" from the definition of protected health information (45 CFR 160.103). A drug test your own doctor orders as part of your medical care is different. That result becomes part of your medical record and is protected against unauthorized disclosure. Either way, a failed drug test is not a public record unless it led to a criminal conviction or parole revocation.

DOT-regulated employers must keep verified positive drug and alcohol test results on file for five years under federal regulation, and non-DOT employers set their own retention periods under company policy and state law. There are also some specific cases where your drug test may become part of a public record.

Note: Under the Americans with Disabilities Act (ADA), a test for illegal drug use is not considered a medical examination. If the results of a test reveal the use of a lawfully prescribed drug, however, those results are medical information and must be kept confidential.

Quick take

• Federal law does not require most private employers to have a drug-free workplace policy; the Drug-Free Workplace Act of 1988 requires one only for federal contractors above certain thresholds and federal grantees.
• Employees and applicants covered by the Department of Transportation, such as school bus drivers, truck drivers, coast guard members, pipeline workers, FAA employees, pilots, and train engineers, must take mandatory safety-sensitive drug and alcohol tests.
• A drug test alone is not a public record. It only shows up in a criminal background check if it results in a conviction or a parole revocation.
• A prior drug-related conviction, separate from a recent employer-ordered test, can still show up in a background check; see how long a felony stays on your record state by state.
• A doctor or "covered entity" may share your confidential medical record with third parties only if you sign a release, under a court order, or under another exception recognized by HIPAA.
• Employers can generally see only a "pass" or "fail" result from a company-sanctioned test, not the underlying medical details.

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?

EEOC guidance on the use of arrest and conviction records in employment decisions explains that an employer's use of an individual's criminal history when making employment decisions may, in some cases, violate Title VII 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, whether a drug test shows up in a background check depends on a few factors:

• Is it a government or private employer? Applicants for a government job, military position, or law enforcement role may have to disclose a failed drug test depending on state law.
• Did the test lead to a conviction? If it led to a conviction or a parole revocation, the record will show up in a criminal background check.
• Was the test required by a government program? Drug tests taken to comply with a governmental organization's requirements can become part of the public record.

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 a background check. For a company-sanctioned test, your employer typically sees only a pass or fail result. Where HIPAA does apply, meaning the entity holding the record is a "covered entity" such as a hospital, clinic, or health plan, federal regulation permits that covered entity to use or disclose a positive result without your authorization only in specific situations, under 45 CFR 164.512:

• For research, under certain conditions.
• When required by law or law enforcement.
• Involving victims of abuse, neglect, or domestic violence.
• For judicial and administrative proceedings.
• To prevent or lessen a serious and imminent threat to health or safety.

Because most employers are not "covered entities" under HIPAA, HIPAA itself does not restrict how an employer uses drug test results it holds in its role as employer. Other laws fill that gap instead. Under the ADA, a test for illegal drug use is not medical information, but if a test incidentally reveals the lawful use of a prescription medication, that information must be kept in a separate confidential medical file and disclosed only to supervisors regarding necessary work restrictions, to first-aid and safety personnel, or to government officials investigating ADA compliance. State privacy and employment laws add further limits, and disclosing results outside these narrow channels can support a common-law invasion of privacy claim.

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: A lab-run test is generally more accurate than an at-home test, but both report results using the same "cutoff levels" set by the applicable testing standard. That means an at-home test can produce results broadly consistent with what a certified lab would report, though only a certified lab result is typically accepted for employment or legal purposes.

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:

• As of NCSL's cannabis tracking, at least 24 states and the District of Columbia have legalized cannabis for recreational adult use, and a larger number allow medical marijuana in some form; the count keeps changing as more states act.
• Beyond Nevada, several other states, including California, Connecticut, Montana, New Jersey, New York, and Rhode Island, now limit how much an employer can rely on a positive marijuana test or off-duty marijuana use when making employment decisions.
• Working under the influence of marijuana on the job can still be grounds for dismissal or other disciplinary action, even in states that have legalized recreational or medical use.

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 depends on company policy. On the other hand, prior drug-related convictions remain visible on background checks until you expunge your record.

When a court expunges or seals a criminal record, the documents are no longer public. The record will not show up on most 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) must keep verified positive drug and alcohol test results for five years under 49 CFR 40.333; negative and cancelled results are kept for one year. Separately, when a trucker, aviator, or other safety-sensitive transportation worker changes jobs, the new employer must investigate the previous three years of that worker's DOT drug and alcohol testing history, largely through the FMCSA Drug and Alcohol Clearinghouse for commercial drivers. That means a verified positive result can affect a safety-sensitive worker's hiring prospects industry-wide, well beyond the original employer.

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.

Confidentiality rules for drug test results: what you need to know

• Disclosure of drug test results without your consent is generally restricted by state privacy law, employment law, and, where a covered entity such as a treating clinic is involved, HIPAA; exceptions typically include a court order, a government investigation, or ongoing litigation related to the test.
• Company policy determines who inside the organization can see the results and how they may be used.
• Many employers voluntarily commit, by policy or by contract with a testing vendor, to keep drug test results confidential and separate from the general personnel file.
• Employers may still ask for written consent before sharing results with an outside third party, such as a licensing board or a client requiring proof of a clean test.
• Employers retain the right to set consequences for a failed test under their own policy, which can include termination, denial of employment, or mandatory participation in a rehabilitation program.
• Disclosing results outside these channels can expose an employer to a civil claim for invasion of privacy or, in some circumstances, discrimination.

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 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-certified lab, and use a qualified collection facility.