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Our employee tested positive for opiates after a work related

incident. The test was sent...
Our employee tested positive for opiates after a work related incident. The test was sent out to the MRO (waiting for results). When the incident report was written it mentioned the employee name and also mentioned he was released from duty "pending a failed post incident drug test". This incident report was circulated with on a controlled environment via email. Any HIPAA Violation to be concerned about?
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Answered in 6 minutes by:
4/19/2013
socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 39,498
Experience: Retired
Verified
HIPAA is confined to covered entities (health care providers, health care plans, health care clearinghouses). There is no application to employers, whatsoever.

The potential claim would be unlawful discrimination in violation of the Americans with Disabilities Act (ADA). In order for this to be a valid claim, the employer would have to release confidential health care information to persons with no reasonable need for the disclosure. So, when you say "controlled environment," the question is whether or not the personnel to whom disclosure was made was reasonably necessary in order to manage the business of the employer.

This is not something that I can evaluate -- however, on balance, it's unlikely that the employee would have a claim against the employer -- because the employee would have to show that the drug screen was incorrect. Otherwise, the employee would be disputing a drug test that revealed him to be engaged in illegal conduct -- which would make a claim for discrimination absurd.

But, as to the original question re HIPAA -- there is no violation.

Hope this helps.
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Customer reply replied 4 years ago

Yes, this helps because I argued that it doesn't violate HIPAA, but of course I'm not the expert so please be patient with me and help me through this. I may ask another question or two. Fair Enough? I approach you support.


 


Robert

Sure.

Here's an example. In U.S. v. PRENTICE, 683 F.Supp.2d 991 (2010), the U.S. District Court for the District of Minnesota held:

  • Government's receipt and use of medical records of defendant's daughter was not subject to restraints on use or receipt of protected medical information pursuant to Health Insurance Portability and Accountability Act (HIPAA) so as to warrant suppression of daughter's medical records, since government was not “covered entity” under HIPAA.  U.S.C.A. Const.Amend. 4; 45 C.F.R. §§ 164.104, 164.502.

 

Hope this helps.

 

socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 39,498
Experience: Retired
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Customer reply replied 4 years ago

Thanks for your service. Unfortunately, I was dismissed as the site safety manager because the organization thought I violated HIPAA. Your service put me at ease and i can rest relax knowing I did not violate anybody's rights or laws. I may call on you regarding my path forward. Thanks again.


 


Robert Street

Thanks for your confidence. I'm sorry that you were terminated. Hopefully your next employer will make its decisions based upon the law, rather than upon emotion.

Best wishes (no need to reply).
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socrateaser
socrateaser
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Category: Legal
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