Can Previous Employers Disclose a Failed Drug Test?

When it comes to your employees and drug tests, you want to make sure you conduct all the research you can. But what’s legal? What are the standard practices? What do you need to know if your employee fails a 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:

Is it Legal for Previous Employers To Disclose a Failed Drug Test?

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.

Can a Failed Drug Test Show Up on a Background Check?

In 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.”

What Should Employers Keep in Mind Regarding Failed Drug Tests?

A failed test has different consequences for different employers. The level of punishment is usually tied to the position’s needs.

Keep the following in mind if your employee fails a drug test:

Know The Laws

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.

Frequently Asked Questions

Do Failed Drug Tests Show on Background Checks?

In most cases, failed drug tests do not appear on background checks. Privacy laws, such as HIPAA, protect medical information from being shared without an individual’s consent, and employers, especially in private companies, typically do not disclose such results.

If You Fail a Pre-Employment Drug Test, Does It Go On Your Record?

While a failed pre-employment drug test may be documented in the employer’s records, it is generally kept confidential. However, the results of a failed drug test for a safety-sensitive position may be accessible to future employers, adding variability to confidentiality.

Conclusion

It can be helpful to have a helping hand when handling sensitive subjects like drug tests.

ScoutLogic is the background check expert. With years of experience in every state, we can make the complicated process simple and efficient.

When you follow the Scout method, you get paired up with a background check expert eager to answer all your questions and put your mind at ease.

David Garcia

David Garcia, co-founder and CEO of Scout Logic, is an industry leader in the bulk background check world. With his strategic acumen and expertise in the HR sphere, specifically in hiring, recruiting, legal compliance, background checks, and resume screening, he’s an invaluable asset and consultant.

David's counsel extends across the boards of ScoutLogic, YipitData, and Supplier.io, drawing from his impactful stints on the boards of Infutor and Avetta. With an extensive 25-year journey, he champions unparalleled B2B commercial leadership within data & analytics, significantly shaping the HR landscape.