How Confidentiality is Ensured in Employee Drug Testing
Privacy concerns have always pervaded the matter of workplace employee drug testing. The courts now define the rules and methods have adjusted appropriately.
In California and throughout the United States, employee drug testing has become more the norm than the exception. Testing workers’ urine or hair samples for evidence of use of illegal and abuse of prescription drugs began in the 1980s and has steadily increased. But along with its use has come concern for privacy and confidentiality. This has been addressed by the courts and in workplace policies that are used by both public and private employers.
The U.S. Supreme Court has ruled that the need for safety overrides the privacy rights of employees, as long as proper notice is given to those individuals who are to be tested. Also, the search must not be unreasonable. This translates into applying testing with fairness to all employees and to those for whom there is some suspicion of use and impairment. The law also states that testing results cannot be indiscriminately divulged – the privacy provision that has been a concern since the very beginning of employee drug testing.
Since 1987, all federal agencies and contractors have required testing of workers for possible substance abuse, usually as a condition of employment (after a job offer is made but before the employee begins working). Most state and local governments, including the state of California, have adopted this practice. Nationwide, about 60 percent of large (500+ employees) private employers also conduct some degree of employee drug testing. For both types of employees, the rules on drug test confidentiality are as follows:
  • All information obtained in a drug test is confidential to the employee and the person or persons whose job is to deal with employee drug testing and results.
  • If the employee consents for drug test results to be given to other parties, they need to state in writing who is authorized to receive it, the purpose of their receiving it, what exactly is to be shared, the time duration that access is granted, and that the information is not to be made public.
  • An employee whose confidentiality is compromised can sue those responsible (the employer, an individual or the testing laboratory).
  • Individuals who knowingly violate employee drug test results privacy can be charged with a misdemeanor, punishable by up to a year in jail.
In other words, the law is clear that confidentiality is to be maintained in very specific ways at all times.