EMPLOYEE MEDICAL PRIVACY ISSUES (PART 3)

DRUG TESTING

This is the third and final in a series of posts regarding medical privacy issues in the workplace.  This post concerns drug testing.

An employer with a compelling business interest and a written policy prohibiting drug use or being under the influence of drugs at work, may be able to drug test under limited circumstances.  Having a signed job applicant/employee testing consent form before testing is highly advisable.

Job applicants may be required by the prospective employer to undergo a drug test when the test is part of an already mandated pre-employment medical exam required of every applicant.  Loder v. City of Glendale (1997) 14 Cal.4th 846.   Testing  of current employees is quite restricted under federal, state and sometimes local laws.

Specific medical information revealed in any drug testing should not be sent to the employer.  Rather, the company should only be informed of whether the candidate passed the testing criteria or not. Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3rd 1034, 1038.  The safest course is to have an independent agency administer the test at an outside facility, and report back to the employer with a simple pass or fail result, not a detailed lab report.

Those test results should be kept confidential and maintained separate from personnel files (which may later be subpoenaed or inspected for unrelated matters), in accordance with the California Confidentiality of Medical Information Act.

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