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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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I took a drug test potential employer, and it was positive.

Customer Question

I took a drug test for a potential employer, and it was positive. I told the faculty I had taken a medication not prescribed to me, and I knew that I was no longer a candidate for hire, and left my orientation. Now, a different employer knows of the positive drug screen. They are not within the same hospital system. My license is clean. Is that allowed?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

Unfortunately, drug tests generally are not confidential, as their purpose is to screen for elicit substances and an employee has no right to confidentiality with regard to their use of elicit substances. The only exception to this general rule would be if the drug test revealed use of a prescription drug which the employee is using to treat a disability. Then, that would be considered protected health information and the employer would have an obligation to keep it confidential. But the laws that mandate this confidentiality simply do not apply to substances for which an employee does not have a prescription. Therefore, I'm afraid to say there is not much you can do from a legal standpoint to remedy or address this situation. All you can do is continue applying to other hospitals. It is very unlikely that the news of your positive drug result would have spread very far.

I hope that you find this information helpful and am genuinely sorry if it is not what you were hoping to hear. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

Customer: replied 1 year ago.
ADA...—it also protects potential employees who simply apply for a job. For example, an employer may offer a potential employee a job on the condition that he or she passes a medical exam. If the person fails the exam, the employer may withdraw the offer, but it may not give out that information, and the employer must keep that information in a separate medical file.
Would that not include results from a drug screening?
Expert:  Patrick, Esq. replied 1 year ago.

Thank you for your reply.

No, the ADA would not cover this. In fact, the ADA is what I was referencing in my initial answer where I mentioned that prescription drug use is considered protected health information and is subject to confidentiality. The ADA is what compels that result. Unfortunately, though, the ADA does not extend to drug tests because drug tests are simply a test to screen for illegal drug use, and the ADA does not entitle employees to confidentiality with regard to illegal drug use. Basically, drug tests are not considered part of the employee's ordinary "medical record."

I wish I could provide better news for you here, but I hope that this clarifies the law so that you can move forward. If I can be of any further assistance to you, just let me know.

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