Privacy rights in the workplace often reflect an uneasy balance between the needs of employers and employees. This is especially true about drug testing. For example, many states have enacted legislation that protects employees from being required to urinate into a cup or provide other bodily fluids outside of regular measures, such as giving blood or hair samples on request, without cause for their position.
The following article will discuss more these protections and your rights regarding job drug testing.
Table Of Contents:
- Introduction
- Workplace Privacy Rights for Employee Drug Test
- Are Job Applicants and Employees Required to Consent to Drug Testing?
- Implications of HIPAA on Positive Drug Test Results
INTRODUCTION
Workplace drug testing is a controversial topic in the United States and other countries. However, it has become increasingly important for employers to test their employees for drugs in recent years, as evidence of employee drug use can have significant consequences.
It is currently legal in all 50 states to have mandatory tests for drugs and alcohol as employment conditions. The Supreme Court has ruled that there is no violation of the Fourth Amendment rights against unreasonable search in such testing. Employees subjected to drug screening without their knowledge can sue under the theory of being denied "property interest" while on the job, but an employer can still contest this argument.
In the workplace, a drug test is often administered to screen employees for drugs. However, this test can be quick and painless, or it can be invasive, humiliating, and time-consuming with the potential for false positives. In recent years, companies have been pushing for stricter drug testing that scans the body for traces of MMJ on top of urine tests.
The Drug Testing Industry Association estimated that over four million drug tests are conducted annually in the U.S. alone. In addition, the testing industry is projected to grow by more than 50% between 2006 and 2015.
Workplace rights are protected by national, state, and federal laws designed to protect employees from intimidation or harassment at work. Employees have a right to privacy when it comes to knowing the results of drug tests at work. Even if the drug use is against company policy, employees maintain their legal right to some level of privacy.
A review of federal and state laws will reveal that drug testing in the workplace can violate several laws. For example, the PATRIOT Act and the ADA (Americans with Disabilities Act) require employers to use reasonable medical procedures for testing.
There are four types of methods that employers used for drug testing: urine (UF), hair (HG), saliva (SAL), and blood. Urine is the most common method because it is easily detectible in a large percentage of cases. However, some employees use hair products or scales to mask their urine smell.
Urine tests are also not always accurate because there is a window of opportunity for illegal drug use. It is possible to go through the day and not use drugs, which will raise a false negative.
However, it is also necessary for the test to be administered soon after taking the drug. This can cause false positives and make an employee "guilty" without any actual evidence of drug use.
In addition, employers often pressure employees to take a drug test. For example, they can order employees to take a drug test if they are suspected of using drugs on the job or even if they have been reported for a workplace accident in which drugs may have been involved.
However, no proof taking the test will stop employee drug use or make them pass a drug test. In fact, in some cases, it may lead to further drug use or other problems in the workplace.
WORKPLACE PRIVACY RIGHTS FOR EMPLOYEE DRUG TEST
If you're a current or prospective employee, it's essential to know your workplace privacy rights. In some cases, employers have the legal right to drug test their employees. If this is the case for you, here is what you need to know:
- Employers can legally drug test employees if they provide written notice of their intent to do so within a reasonable timeframe (typically two weeks) and in good detail about the type of drugs they will be testing for and how they plan on doing so.
- In many states, it's illegal for employers to offer you a job contingent on you passing a drug test, and it's also illegal for them to fire or demote you based on a negative drug test.
- Even if your state doesn't have these laws in place (and many do not), most employers will follow them anyway. This is because employers don't like getting sued, and they know that people are hesitant to take legal action against them because the legal process is expensive and time-consuming.
- You have the right to a copy of any employee drug testing results, and you can challenge them yourself or ask an attorney to do so on your behalf.
- Even if you fail a drug test, you have the right to take a disability evaluation if your employer is required by law to provide it. Most employers will give this information without asking as long as you pass the drug test.
- You have the right to ask your employer to change how they test for illegal drugs. An example of this is if the employer is using hair samples instead of urine samples for testing.
- If you believe your workplace privacy rights were violated, you can sue your employer, and they will have to pay you monetary compensation for damages, including attorney fees. This is called punitive damages and is awarded only in extreme cases where the employer acts intentionally, maliciously, or wrongfully.
- If you are fired, you may have the right to sue your employer for wrongful termination. This is because your dismissal wasn't related to legitimate business reasons, and it's also considered discrimination based on race, religion, gender, or disability.
- If your employer gives you a drug test as a condition of employment that violates state law, you have the right to file a lawsuit against them. In some cases, this involves filing a lawsuit against other employees who had nothing to do with the drug testing. For instance, if other employees were testing positive for drugs but your employer didn't fire or ask about them, then they could be held liable too.
- The courts have held that random drug testing of employees is not permitted in a workplace. All drug testing in a workplace must be based on reasonable suspicion that an employee may be abusing drugs and alcohol.
- Even if you don't think that it's right for your employer to test you for drugs, you still have the right to decline the job offer or resign if they try to give you a test. In addition, if they are currently investigating other employees who may be using illegal drugs, then declining the request is not only very practical but can help protect your privacy rights as well.
ARE JOB APPLICANTS AND EMPLOYEES REQUIRED TO CONSENT TO DRUG TESTING?
The United States Supreme Court has held that when an employer hires an applicant, the applicant consents to drug testing. But, are job applicants and employees required to agree to drug testing?
There are two scenarios where job applicants might be subject to drug testing: when they apply for employment with a company and voluntarily consent to a pre-employment screening process.
When an employee is hired, they have already agreed to submit their bodily fluids for random (drug) screenings before starting work. This means that an applicant for a job has consented to drug testing during the hiring process
During the first phase of the hiring process, this consent to drug testing may be understood as implied consent. More recently, some companies require applicants to consent to drug testing as part of an application process.
In "National Treasury Employees Union, " the Supreme Court decided that this approach is constitutional and not an undue burden on the employee because the company is merely asking for permission to drug testing during a hiring process.
The Supreme Court ruled that a federal regulation requiring federal employees to consent to random drug testing as part of the hiring process was constitutional because the requirement is for assent (opinion) rather than formal consent.
IMPLICATIONS OF HIPAA ON POSITIVE DRUG TEST RESULTS
HIPAA stands for Health Insurance Portability and Accountability Act, but it is the Security Rule that is more important than the law. The purpose of this rule is to protect patient health information from unauthorized access and use by anyone except another patient.
There has been a recent substantial change in the monitoring and enforcement procedures utilized by the United States Food and Drug Administration (FDA) to ensure compliance with Good Clinical Practice (GCP) regulations by HIPAA.
The FDA developed this new program, prioritizing drug testing as one of their new focus areas. There have also been two other significant changes in these testing procedures over time that have significantly affected patient care. Firstly, "limitations were added that included a requirement for written agreements between patients and their Institutional Review Board (IRB) or Institutional Biosafety Committee.
Secondly, a requirement that investigators must have an understanding of the legal ramifications of having a positive drug test result was clarified" ("Test Results"). The importance of conducting drug testing is no longer the sole responsibility that falls on the patient.
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Federal Law
The United States Congress passed the HIPAA in 1996. This act fixes the rules and regulates how health professionals are allowed to take and store health information. Under this law, patients are allowed to file complaints on the breach of privacy, which can be filed directly with either OCR or HHS.
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Requirement to Disclose
Cover letters: The Act requires all health care providers to disclose any person who is not a patient to maintain their access to medical information. In other words, if the test is "positive," you should be told that you are "not a patient."
Receipt: The Act also states that health care providers must provide patients with a receipt for any test results they provide.
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Accessing of Information
There are special rules involved in accessing private medical information under HIPAA. For example, you are allowed to access your medical information under the following circumstances:
– if you are a patient involved in the testing.
– if you are a relative of a patient involved in the testing.
– if you are an authorized health professional, who would be authorized to access your information.
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New Tests and Old Tests
The HIPAA also replaced the old "AIDS-related blood test" that came into popularity during the 1980s with newer tests that determine whether or not someone has been exposed to HIV/AIDS. The two main categories of these tests include "Chronic Exposure" and "Acute Exposure."
For the latter, you are allowed to take this test if you are not taking medication that will change your status as positive or negative. In addition, if you have been taking treatment for HIV/AIDS in the past seven days, there is no harm in doing the test. Finally, you can also get tested if you were exposed to hepatitis C through blood transfusion or birth by a mother infected with Hepatitis C.
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Costs of Positive Tests
HIPAA allows for health care professionals to bill a patient for a positive drug test without their consent. However, it is not allowed to ask for money if there is no insurance involved.
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Access if you are a Minor
Minors do not have access to their health records unless they are under the care of a practitioner. In addition, parents are allowed to access documents with the minor's consent; they can get information about their children without a court order.
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Health Care Proxy or Power of Attorney (POA)
If your POA knows what your position on these issues is, then he/she can save you time and trouble by filling out the form on your behalf.
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Insurance and HIPAA
According to the Department of Health and Human Services, "drug test" is considered to be "covered health care services." However, there are certain situations where insurance providers will not pay for tests identified as being covered by HIPAA.
For example:
– Testing for an HIV-positive result in a person who does not know they are positive.
– Testing for an HIV-positive result in a married person or has children who also know that they have been infected with HIV/AIDS.
– The cost of drug screening tests is also included in terms of eligibility for the "best possible" prescription drug coverage provided by your health insurance provider.
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Scientific Research
If you are being tested for drugs to be used in a scientific research study, the patient taking medicine must be informed that they are part of a study. The information about the task can be obtained from the "informed consent form" or an "informed consent document."
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Privacy Breach
If you believe your privacy has been compromised and you would like to file a complaint with OCR on this issue
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HIPAA and Health Insurance Portability and Accountability Act (HIPAA)
The HIPAA protects all patient information from unauthorized access or use; it also protects your privacy whenever you seek medical attention. Here are some key points:
– Medical records should be placed in a secure area so only you can access them.
– Your medical records should be treated as confidential material; no one should have access to it unless they are directly responsible for your health care or if they have expressed consent from you to review your medical records.
– Your medical records should be stored to avoid alteration, destruction, or any other kind of unauthorized access.
The HIPAA also requires health care providers to protect patient information that is in their custody. There are three protections that you should know about:
– Keeping a record of all the employees you have working for you in the medical facility. You must ensure that they are aware of all HIPAA rules and regulations regarding patient information.
CONCLUSION
Let's conclude the topic of workplace privacy rights for employee drug testing.
Employers have been taking a more hands-on approach to workplace privacy rights over the last three decades for various reasons: General economic trends, shifts in the social contract between employers and their employees, changes in the law, and court decisions.
Employers have focused on implementing drug testing programs as one of many different preventative measures to ensure a safe work environment and fulfill their responsibilities under state law.
Drug testing policies have been put in place to keep employees safe, deter drug use, and provide a fair opportunity for employees to compete fairly with coworkers.
As a result of the increased emphasis on workplace privacy rights and in response to public concern about laws that interfere with employers' ability or choice as to how they deal with employees suspected of using drugs, many courts have adopted the "reasonable suspicion" standard.
To conclude our discussion of the topic, let's review the role of employers in establishing drug testing policies:
Laws that restrict employers' ability or choice regarding how they deal with employees suspected of using drugs are contrary to the public interest and should be invalidated.
Effective drug testing programs should provide reasonable suspicion results to merrier employees for a legitimate reason and not violate an employee's privacy rights.
Employers have a right to implement drug testing programs and policies by the law and free from unnecessary government interference.
Drug testing is one of many legitimate methods that employers use to address employee drug use. Still, it does not constitute an unreasonable search or an infringement on employee privacy rights.
The implementation of drug testing programs should be determined case by case when an employer suspects an employee of using drugs.
