DOT Drug Testing

[JMSKI]

What is the name of your state? PA

I had a positive result on a DOT random drug screen. There was a meeting with myself the union and the company and I was placed on suspension. After I left, a company manager called in the whole department and office staff and announced my positive test result and some medical information that was discussed in the meeting. Given the federal privacy laws that cover DOT testing do I have any recourse ?

 

[quincy]

This is not really a defamation issue, but rather an employment issue.

The results of the drug test may be considered personal health information and there are possible restrictions on how or whether it, or any other information relating to any history of drug or alcohol use, can be shared with others. You probably needed to sign a release at the time of your drug-testing in order for your employer to even receive the results at all.

HIPAA dictates under what circumstances and to whom your health information may be released, and there are special guidelines for employers covered under the U.S. DOT drug-testing regulations.

It is very possible, from what you have posted, that your employer violated the Health Insurance Portability and Accountability Act by discussing your test and other medical information with the whole department and office staff.

Since I am not an expert in employment law or HIPAA, I suggest you re-post your question in the Employment Law section of this forum. While the experts over there sometimes wander over to Libel/Slander/Defamation, there is no guarantee they will see your question hiding out over here.

Good luck.

 

[cbg]

I am not an expert in DOT regulations. However, I do know how HIPAA works within an employment relationship.

The plain fact is, most employers are not covered entities under HIPAA, which means that HIPAA does not apply to them. Unless the employer is themselves a doctor's office, hospital, health insurance carrier or clearing house, they are not bound by HIPAA laws.

An employer's self-insured health insurance plan would be a HIPAA entity (though a fully-insured health plan would not be). So unless the information was obtained through the employer's self-insured health insurance plan, which it was not, HIPAA was not violated by its release.

I am by no means saying that I approve of what the employer did. On behalf of employers as a whole, I am ashamed of him. Quincy would know better than I whether any other privacy laws were violated. But HIPAA was not.

 

[quincy]

Thanks, cbg. I guess I should read a little more about HIPAA so I know when it applies and when it doesn't.

So, JMSKI, if this is not employment or HIPAA related, then you MIGHT have a legitimate invasion of privacy action against your employer, where the publication made of your private data violates Pennsylvania privacy laws, most specifically "the publication of private matters that violate the ordinary decencies."

With invasion of privacy, you do not have to prove actual monetary loss and the data disclosed can be true. Unlike defamation, where the comments made must be false and defamatory and reputationally damaging, invasion of privacy actions do not require any of these proofs. Defamation concerns primarily reputational injury whereas rights of privacy directly concerns one's own peace of mind (although something can be both defamatory and an invasion of privacy).

The only problems I can see with a privacy action is if the medical information disclosed was necessarily disclosed and/or authorized under any prior-signed agreement between you and the DOT.

I know that under certain circumstances, uses and disclosures of protected health information is permitted, although the information disclosed must be only the minimum amount necessary to accomplish an intended purpose. I cannot see how disclosing your information to the entire office staff and department, however, would be necessary.

This would be best investigated by an attorney in your area. But wait for others to post who may be more familiar with DOT regulations.

 

[quincy]

I just read over briefly the DOT regulations about confidentiality and release of information in regards to drug and alcohol testing. It seems that, under the regulations, without specific written consent from the employee tested the employer cannot disclose the results of the testing to a third party - with a few exceptions.

The employer MUST release testing results and other medical information about an employee upon request of DOT agency representatives, or the National Transportaton Safety Board, or federal, state or local agencies with regulatory authority.

With written consent, the medical information may be disclosed in any lawsuit, grievance or administrative proceeding initiated by or on behalf of the employee and it may be disclosed in any criminal or civil actions taken against the employee.

With patient confidentiality, the driver's health and health information is second to public safety in most circumstances.

It still seems that the disclosure of the test results and the medical health information to staff and department employees could be an invasion of privacy. You can go to www.dot.gov for more information on the regulations, but I recommend seeking the advice of an attorney in your area. He/she can go over all of the relevant data and see if there is any action here worth pursuing.