I agree with Don and will take it one step further. Tests used as a pre-employment tools to determine employment eligibility do not fall under the umbrella of HIPAA, though the information they yield is private and not to be shared, much like worker's compensation info does not fall under the HIPAA umbrella. The same tests may be used for diagnostic purposes in medical care, and the results they yield would be PHI in the scope of HIPAA. Even if it is not 'HIPAA PHI', the test result is confidential and should be managed that way, but the procedural guidelines are different. In addition, depending on which state you're in, drug testing (if it's part of a state-authorized drug-free workplace and the business is claiming a worker's comp discount) has confidentiality aspects that must be considered, again not HIPAA, but confidential. Nondesignated drug-free workplace settings (based on state-authorized designations) have a little less scrutiny, though the information must still be considered private and managed accordingly.
I don't think Don is professing that information is available for sharing or shouldn't maintained in a secure manner. But in the arena of private information, 'within' and 'outside' the scope of HIPAA are two different places. Both may contain private/confidential information, but data management requirements may differ.
I do not disagree with your points. Being the conservative person that I am, it is the content of the information "transmitted in ANY FORM and private and confidential information contained in the finished document" that caused our carrier and this company,who developed the guidelines for our training for our muti-state company to bring all information under the same strong guidelines of HIPAA. To me it is logical to be inclusive and afford the information the protection of HIPAA until some court case down the road tells anyone interested that it is not PHI! We'll know who is right at some point down the road, as the courts of our land find ways to re-write new law, which would otherwise appear to be clear and to the point. ADA, FMLA, OSHA, etc. are examples of the evolution of individual law.
It does not hurt at this point in the road, to use the all inclusive words in the HIPAA law "transmitted in any form and private and confidental protections" to include drug testing results the protection of the HIPAA law.
I too felt it was un-necessary, until I asked the question about the drug testing information, and was advised for now, consider it included and we should be safe. When I asked about the W/C documentation, the answer was a clear no, the writer's of the law and procedures where clear on that question and told everyone in their words "not covered by HIPAA". I feel comfortable knowing the two of you agree that there is no need to apply HIPAA rules to this information.
Pork: What you choose to do at your company is up to your company, and you certainly have that right; however, you advised the Forum that I was incorrect and that a drug-screen urinalysis indeed fell under the legal mandates of HIPAA. It does not and that is what I have attempted to point out to the readership. People who participate on the Forum should have clear understandings of what is legally mandated and what is some company's individual practice and policy and what is some HR Manager's prerogative. I am delighted that you are now 'comfortable'.
FORUM: To all of you that are interested, this forum, from my perspective has never been the base library for research. Whenever, there has been any doubt in my mind, that I may have typed something that would cause you to consider my words as: "from the Chief of the HR Supreme Court so jump on board", I hoped that I recommended and you heard or read for you to check with your retained attorney. My experiences are my experiences; however, if my experiences help you to sort through your issues and help you to walk a path that fits your feet, I am proud I stepped up and "stirred the bushes to flush the quail".
Don, I appreciate your opinion, and accept it for what it is "your words based on your experience, and the successful laws that you have written for our great state and America, as well as, your prolific writing ability".
I especially appreciate your ability to cut things up, slice them down to the black and white potential on all issues to which you choose to pontificate. It is truly valuable for all of us to realize your strengths with no weakness. 99% of the time is is cut and dried as a reliable fact, 100% accurate for your circumstance; however, as forum readers and poster with our own set of circumstances, we must transfer your words into our potential paths on which we will travel. Debate between professionals pro and con is good for all to read and decide on their own what they need to take and what they need to leave on the screen.
Again, thanks for helping me and others, I'm sure to be more comfortable with our individual actions!!!!
Getting back to your original question, your policy says "disciplinary action up to and including termination." So you're not handcuffed by a zero-tolerance policy. You can look at the situation, the ee's history, safety, the precedent you're setting, etc., and decide what's best for your organization.
And drug tests aren't perfect. Even if they're near perfect, that means someone, somewhere will be incorrectly labeled as a drug user. You could ask your drug lab's advice on a re-test that would cover the time in question.
My gut feeling is that he's guilty and will be fired. But if you have a nagging doubt, it doesn't hurt to make sure.
James: Help me understand your suggestion. You suggest that perhaps a retest covering 'the time in question' might clear the matter up. How might that work? You're going to retest him NOW to see if he was using cocaine in the past?
I don't know the details of the different testing techniques -- that's why I suggested he ask the lab for advice. You mentioned hair testing. If it showed that he used cocaine in the past, it pretty much blows his credibility. But I'm no expert.
I am in agreement with Don D and stilldazed. Drug testing is not covered by HIPAA, just as workers' compensation, FMLA information, STD information, etc. are not covered either. As both have stated an employer must keep this information confidential but it is not PHI. Any information an employer gets in the normal course of business and for a legitimate business reason does not fall under HIPAA.
MUSHROOM: I state again, I agree. Now, did the Supreme Court just rule that the laws to protect our children from the porn displayed on this wonderful device called a computer is in violation of Title 1? Who knows what might happen next week or the next session of the courts to rule on this very issue.
Oh well, this is really not worth the time to drill on any more!!
Good bye, I have gone to the farm to shovel manure at least I get some physical exercise that I so desperately need in order to keep this ole mind working!
Thanks for everybody's good input. Here's where we are at for now. His Department Head has been on vacation till Tuesday, so we have suspended him from work with pay until the DH returns. Since he was near the end of his probationary period, we have extended that for up to six months. He has been an excellent employee who is filling an entry level Public Utility Worker position, and his supervisor is highly supportive of retaining him, as he believes in his innocence but has nothing but his word to go on.
Options for the DH to consider will be termination (this is my leaning as I agree with most of you as to the reliability of drug test results and the issue of setting a precedent, although our Policy wording would allow individual evaluations); He could request the MRO to have his second sample analyzed but he would have to pay $300 which would probably not be refunded either way--his problem here in my opinion would be if he believes the specimen is someone else's then of course it will test positive again and this may not prove anything in his opinion and he would almost for sure be terminated; We would set up a number of conditions, random testing, etc., etc., etc. at his expense; We may talk over other options as well along with our City Attorney's input, who shares my concerns.
Can you imagine the lawsuit against us when this employee a few weeks from now injures some child and tests positive for cocaine again? Our good-hearted approach to this employee will mean nothing to that child's parents, and I don't see much sympathy from anyone else either, especially our elected Council members.
I'll keep you posted on our conclusions. Thanks again.
I think you are really asking for trouble by keeping this ee. #1 you should be darn grateful that he didn't hurt anyone else and have a positive, #2 an accident and a positive, what more do you need to term? Are you waiting til the next time the drug user gets hurt bad enough to sue you for knowing he was using and retained him? #3 you have better be prepared to allow all positives the same CONDITIONS or you will be calling the next ee you fire for a positive "THE NEW PRESIDENT OF THE COMPANY"
I congradulate you for coming to a decision with your attorney in your pocket. I know there was some confusion placed in this thread by me, and I apologize to you for the trip we went on.
My purpose was not to confuse you, but to also open other pieces of information that might also apply to your situation and your decision making process.
I have learned a strong lesson this week; I am also a very experienced HR, who will try to assist any HR with information on my successes, as well as, my failures. Each of us have our own experiences and it does not help anyone for our experiences to be put down in someone's elses context. Our postings should always be oriented to the original poster and their concerns. If I disagree with someone's thoughts fine, I will post to the original, my thoughts and you can sort through the issues and take from the screen what you need and what you don't need.
Just so you know, this employee's accident was cutting a piece of pipe when something went into his eye. He was not wearing safety glasses, which hopefully will be dealt with as a separate issue. He washed his eye out and voluntarily asked to see the doctor just to make sure everything was okay, which it was, as he has had no further treatment. One of his arguments for his innocence was, "Why would I voluntarily go to the doctor knowing I was going to have a drug test if I had used cocaine recently?" I chose not to be sarcastic and respond "because you were too spaced out to know what you were doing". I just let his statement go by.
If we keep him and he hurts himself again, I don't think he can sue us for getting hurt because of the Workers' Compensation no fault rules. Realizing anybody can sue anybody for anything, do you think he can sue us arguing we should never have retained him "knowing" he was a drug user? Surely that wouldn't go far.
Crawford, I feel that you may be creating a problem that you will have to live with if you let the DH make the final decsion. And with the ee still on probation why would the supervisor even give it a second thought. I agree with all the others it is best to "cut bait" with this ee.
Wayyyyyyy too much discussion on this one. Fire the employee immediately. Don't look back and don't second guess yourself. Too many good people out there looking for work to put up with someone like this.
Looking between the lines, it appears to me that the department heads and supervisors where you work either make determinations on retention or make the decisions on how you will enforce policies. If the culture where you work allows that, you must live with it. I've never worked in an environment where a department head or supervisor made decisions regarding retention of someone who failed a drug test. But, you have to exist in the environment in which you find yourself. In all of the environments where I have worked, this decision was 100% in the court of the HR Director/Manager, not some supervisor who wanted to retain somebody for whatever reason.
Don, I have noticed that a number of HR Forumites apparently have discharge responsibilities in their job duties, but my current culture is not that way, nor was my previous HR manufacturing organization. Hiring, disciplining, and firing, etc. were departmental responsibilities, since that is whom the employee reported to. HR's role was to make sure those actions were properly done, legal, and in compliance with our policies. But if somebody clearly violated a rule that called for separation, the department didn't need to get HR's permission or denial, they did what they were supposed to. Now, if the department didn't consult with HR and made a bad decision, then they were accountable for not CYA by checking with HR first. Our current drug policy allows some options based on several factors that can only be answered by the department (performance, length of service, circumstances, etc.).
It might be an interesting survey for James to run to see how many HR people have such a responsibility. I know more firms who use HR for counsel and advice than firms who use HR as a sword. Fortunately, in my current culture, I have earned the respect of department heads who will seek my counsel before taking negative actions against employees, partly because some of our rules are black and white and others are gray and subject to some options.
Ultimately, rare disagreements between myself and department heads are usually bounced off our long term attorney, and the Mayor as CEO has his power of final decision making. I haven't had to go to the Mayor yet in my 3 years here to resolve a disagreement.
Thanks for plugging our monthly surveys. We covered this topic in our Firing survey in June 2003. Here are a couple of questions and responses from 2,704 people:
1. Who usually has the last word in deciding whether an employee is fired for cause?
39.0% HR department 31.3% President/CEO 16.4% Manager 6.6% Legal counsel 3.5% Other 3.2% Supervisor
2. At what point does HR normally get involved in a termination?
61.0% From the very beginning: We help decide whether to fire 28.9% After a supervisor or manager recommends firing 6.8% After the firing decision is made, but before the employee is told 3.2% After the employee has been fired
Employment Law Letter subscribers can see all the surveys in the Subscribers Area of this website: [url]http://www.hrhero.com/lc/[/url] Look for the yellow box on the right side of the page.
I looked into whether results of post-accident drug tests are covered by the HIPAA privacy rules. The short answer is no.
The post-accident drug test is not given by or administered by the group health plan in any way. It is an employer function and does not involve PHI (personal health information) transfer between plan and plan sponsor. The medical facility may have HIPAA obligations, but the employer does not.
Anne Williams Attorney Editor M. Lee Smith Publishers, LLC
If anyone is still following this post, we gave the employee until 7/14/04 to resign or face termination. He reluctantly wrote us a letter of resignation saying he understood our position but was innocent of drug use and was still going to have a hair test done. We'll see if he provides those results.
He did have an attorney friend contact our attorney asking for whatever tests the employee could go through to prove his innocence. Our answer was we had the highest regard for the lab and chain of custody process and saw no test that would change our position. Plus we did not want to set a precedent of going beyond the original test results.
>Plus we did not >want to set a precedent of going beyond the >original test results. > >Thanks for everyone's input.
Brilliant! My take on this is that, provided you use reputable collection, testing and reporting companies, have sound policies in place, and you are absolutely comfortable with the collection and chain-of-custody process, then the road ends at the first positive (or negative) reported by the MRO. The odds of having a true false-positive provided all of the above holds true is so minimal that I would not even bat an eye.
Just my two cents on this - If he was such a great employee, he would have been wearing his safety glasses and this accident that triggered the testing would never have taken place! As an aside, medical information obtained due to a workmen's comp injury/illness is not subject to HIPPA.
Just saw how old this post is, my input may be too late, but, here it is-Had the same situation with an ee-He tested positive, I bowed to his Manager and gave him the benefit of the doubt, he was not terminated.Three weeks later he took a company car and on his way to another site he had an accident-At the er they did a blood test, he tested positive-We have a lawsuit pending-I am dodging lawyers left and right-My vote is to terminate...
Comments
I don't think Don is professing that information is available for sharing or shouldn't maintained in a secure manner. But in the arena of private information, 'within' and 'outside' the scope of HIPAA are two different places. Both may contain private/confidential information, but data management requirements may differ.
It does not hurt at this point in the road, to use the all inclusive words in the HIPAA law "transmitted in any form and private and confidental protections" to include drug testing results the protection of the HIPAA law.
I too felt it was un-necessary, until I asked the question about the drug testing information, and was advised for now, consider it included and we should be safe. When I asked about the W/C documentation, the answer was a clear no, the writer's of the law and procedures where clear on that question and told everyone in their words "not covered by HIPAA". I feel comfortable knowing the two of you agree that there is no need to apply HIPAA rules to this information.
Everyone have a great and Blessed day!
"Dandy Pork/the conservative"
Don, I appreciate your opinion, and accept it for what it is "your words based on your experience, and the successful laws that you have written for our great state and America, as well as, your prolific writing ability".
I especially appreciate your ability to cut things up, slice them down to the black and white potential on all issues to which you choose to pontificate. It is truly valuable for all of us to realize your strengths with no weakness. 99% of the time is is cut and dried as a reliable fact, 100% accurate for your circumstance; however, as forum readers and poster with our own set of circumstances, we must transfer your words into our potential paths on which we will travel. Debate between professionals pro and con is good for all to read and decide on their own what they need to take and what they need to leave on the screen.
Again, thanks for helping me and others, I'm sure to be more comfortable with our individual actions!!!!
"Dandy PORK, it is so good!"
Getting back to your original question, your policy says "disciplinary action up to and including termination." So you're not handcuffed by a zero-tolerance policy. You can look at the situation, the ee's history, safety, the precedent you're setting, etc., and decide what's best for your organization.
And drug tests aren't perfect. Even if they're near perfect, that means someone, somewhere will be incorrectly labeled as a drug user. You could ask your drug lab's advice on a re-test that would cover the time in question.
My gut feeling is that he's guilty and will be fired. But if you have a nagging doubt, it doesn't hurt to make sure.
James Sokolowski
HRhero.com
James Sokolowski
HRhero.com
Oh well, this is really not worth the time to drill on any more!!
Good bye, I have gone to the farm to shovel manure at least I get some physical exercise that I so desperately need in order to keep this ole mind working!
"Dandy PORK"
Options for the DH to consider will be termination (this is my leaning as I agree with most of you as to the reliability of drug test results and the issue of setting a precedent, although our Policy wording would allow individual evaluations);
He could request the MRO to have his second sample analyzed but he would have to pay $300 which would probably not be refunded either way--his problem here in my opinion would be if he believes the specimen is someone else's then of course it will test positive again and this may not prove anything in his opinion and he would almost for sure be terminated;
We would set up a number of conditions, random testing, etc., etc., etc. at his expense;
We may talk over other options as well along with our City Attorney's input, who shares my concerns.
Can you imagine the lawsuit against us when this employee a few weeks from now injures some child and tests positive for cocaine again? Our good-hearted approach to this employee will mean nothing to that child's parents, and I don't see much sympathy from anyone else either, especially our elected Council members.
I'll keep you posted on our conclusions. Thanks again.
My purpose was not to confuse you, but to also open other pieces of information that might also apply to your situation and your decision making process.
I have learned a strong lesson this week; I am also a very experienced HR, who will try to assist any HR with information on my successes, as well as, my failures. Each of us have our own experiences and it does not help anyone for our experiences to be put down in someone's elses context. Our postings should always be oriented to the original poster and their concerns. If I disagree with someone's thoughts fine, I will post to the original, my thoughts and you can sort through the issues and take from the screen what you need and what you don't need.
"Dandy Pork", is so good!
If we keep him and he hurts himself again, I don't think he can sue us for getting hurt because of the Workers' Compensation no fault rules. Realizing anybody can sue anybody for anything, do you think he can sue us arguing we should never have retained him "knowing" he was a drug user? Surely that wouldn't go far.
It might be an interesting survey for James to run to see how many HR people have such a responsibility. I know more firms who use HR for counsel and advice than firms who use HR as a sword. Fortunately, in my current culture, I have earned the respect of department heads who will seek my counsel before taking negative actions against employees, partly because some of our rules are black and white and others are gray and subject to some options.
Ultimately, rare disagreements between myself and department heads are usually bounced off our long term attorney, and the Mayor as CEO has his power of final decision making. I haven't had to go to the Mayor yet in my 3 years here to resolve a disagreement.
Thanks for plugging our monthly surveys. We covered this topic in our Firing survey in June 2003. Here are a couple of questions and responses from 2,704 people:
1. Who usually has the last word in deciding whether an employee is fired for cause?
39.0% HR department
31.3% President/CEO
16.4% Manager
6.6% Legal counsel
3.5% Other
3.2% Supervisor
2. At what point does HR normally get involved in a termination?
61.0% From the very beginning: We help decide whether to fire
28.9% After a supervisor or manager recommends firing
6.8% After the firing decision is made, but before the employee is told
3.2% After the employee has been fired
Employment Law Letter subscribers can see all the surveys in the Subscribers Area of this website:
[url]http://www.hrhero.com/lc/[/url]
Look for the yellow box on the right side of the page.
James Sokolowski
HRhero.com
The post-accident drug test is not given by or
administered by the group health plan in any way. It is an employer function and does not involve PHI (personal health information) transfer between plan and plan sponsor. The medical facility may have HIPAA obligations, but the employer does not.
Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC
He did have an attorney friend contact our attorney asking for whatever tests the employee could go through to prove his innocence. Our answer was we had the highest regard for the lab and chain of custody process and saw no test that would change our position. Plus we did not want to set a precedent of going beyond the original test results.
Thanks for everyone's input.
>want to set a precedent of going beyond the
>original test results.
>
>Thanks for everyone's input.
Brilliant! My take on this is that, provided you use reputable collection, testing and reporting companies, have sound policies in place, and you are absolutely comfortable with the collection and chain-of-custody process, then the road ends at the first positive (or negative) reported by the MRO. The odds of having a true false-positive provided all of the above holds true is so minimal that I would not even bat an eye.
Gene
"Paid subscriber but posting under protest"