What are the rules surrounding confidentiality and sharing of drug test results?

Generally, drug test results, like all medical information about employees, should be kept confidential. According to the Equal Employment Opportunity Commission (EEOC), "if the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record." As a best practice, all drug test results should be filed in a confidential medical file separate from the general employee file.

The department that receives drug test results should share results only on a need-to-know basis. For example, sharing drug test results with frontline managers is often unnecessary beyond stating whether the results are pass or fail.

State drug testing laws or privacy laws may apply to drug test results either specifically or generally as a matter of personal privacy. Also, the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA) may apply to drug test results depending on the facts involved. Employers should work with their attorneys to analyze relevance of these laws to drug test results.

Drug test results may also be critical in determining eligibility for state- and employer-sponsored benefits. Many laws recognize these situations. The U.S. Department of Transportation (DOT) regulations on testing procedures permit the release of DOT drug test results for investigatory proceedings and other matters of necessity as described under 49 C.F.R. §40.323.

Examples of other matters necessitating disclosure of test results include unemployment eligibility determination, workers' compensation claims and disability benefits. Depending on the applicable laws, consented release may not be required. However, a conservative approach, due to the various laws that may apply, would be to obtain written consent for release from the applicant or employee when possible. When not possible, an employer should consult with an attorney before releasing information without signed authorization.