Can Previous Employers Disclose a Failed Drug Test?

Here at ScoutLogic, we’ve compiled a guide to teach you the crucial facts about your employee’s drug-testing history.

Always perform comprehensive background checks on prospective team members to ensure you’re doing all you can to protect the best interests of your company.

With all that pressure, it’s easy to miss a step or two. Read on and get the facts now:

There is no one clear-cut answer to this question. It depends on several factors. Is the company private or government-run? Was a drug test required due to a criminal investigation? What state are you based out of?

For most privately-owned companies, previous employers may not disclose the results of a drug test on a background check. For most workers in the United States, their employer will never disclose a failed drug test.

However, many government positions require this information and are permitted to seek it.

If a drug test leads to a criminal conviction, the information is public record and may be easily found by an employer. In the same vein, if an employee takes a drug test to comply with a governmental organization, such results are also public records.

The laws also differ from state to state. Be sure to check your local regulations and laws before disclosing or seeking drug test information.

Even if tests are disclosed legally, the company could open itself up to a legal battle regarding discrimination or invasion of privacy from the former employee.

When it comes to the law, always consult an attorney to give yourself the proper backup you need.

n most cases, no. Previous drug tests are strictly private between an employee and their former employer. According to privacy laws outlined in HIPPA (Health Insurance Portability and Accountability Act), medical information may not be shared without the consent of the individual in question.

However, an individual must sign a consent form before performing the drug test in almost all cases.

HIPPA explicitly forbids the drug testing company from revealing the results — not the employer who ordered the test.

During a background check, a previous employer may explain that their former employee did not comply with company standards but may not get more specific than that. Those with experience in background checks often understand the subtext of statements like “did not comply with company standards.”

Any employer who implements drug testing would be wise to consult legal counsel. The protections and laws surrounding these tests are complex. There is no federal requirement for a drug-free workplace. Therefore, accusations of invasions of privacy, defamation, and discrimination are often wrapped up in failed tests.

Provide Reasonable Accommodation

Reasonable accommodation refers to actions an employee takes off the clock. For example, an employer may not tolerate marijuana use while on the job but may allow the use of cannabis during off-hours (in states where it is legal).

Failing the test due to prescription or other legal medication is often permitted when a dialogue with the employee accompanies it. Maintain open communication and make your expectations on drug use clear from day one.

Consider Disciplinary Action

Whether you have a zero-tolerance policy or a three-strike rule, you must draw the line somewhere. Termination may be the only answer for a candidate who fails to seek treatment or puts themselves or others at risk while on the job.

In some states, unemployment benefits are barred for an employee who is terminated for failing a drug test.