Employment: Drug and Alcohol Testing Records: Where To Keep Them and for How Long
Author’s Note: We would like to thank one of the attendees at our recent Employer’s Legal Resource Workshop for this article. After our session on drug and alcohol testing under Oklahoma law, she raised some issues about OSHA compliance. That led us to look into the matter a bit further. We hope this sheds some light for other readers as well.
So, you have made the decision to test your employees for drugs and alcohol; you have developed an air-tight policy and “delivered” it to your employees according to Oklahoma state law. Now you need to know what to do with the records of those tests. Are they “medical records”? How should they be handled? How long do you have to keep them?
This article addresses the maintenance of drug and alcohol testing records for testing performed pursuant to Oklahoma law. If your business performs testing under the Department of Transportation regulations, the rules may differ, so please contact an attorney to discuss any issues or concerns you may have.
The basic rule of thumb is that drug and alcohol testing records are not “medical records” and thus, need to be kept separate from both personnel files and medical records. So, yes, three different sets of records for an employee.
Why should I keep the drug and alcohol testing results separate?
Three different laws may impact the maintenance and retention of drug testing records. First, Oklahoma’s Standards for Workplace Drug and Alcohol Testing Act requires that “Employers…maintain all drug and alcohol testing results and related information…as confidential records, separate from other personnel records.” So, under Oklahoma law, your drug and alcohol testing records may not be kept with your personnel records. However, the law does not address whether they can be combined with your medical records file.
The second law that comes into play is the Americans with Disabilities Act (ADA). The ADA requires medical records to be kept confidential and separate from other personnel files. The question is whether drug and alcohol testing records are “medical records”. The general answer is “no,” especially if your files contain only information about whether the drug or alcohol test yielded a positive or negative result. But, if the information contained in your files is more expansive, those files could be considered medical records.
Let’s break it down. First, we will address drug testing results. The ADA clearly exempts drug testing results, done properly, from its “medical record” provisions. If done properly, drug testing results will not contain any additional health information whatsoever—just a positive or a negative for the drug. As long as that is the case, those records should be kept as drug testing records, separate from both medical and personnel files. If, however, the reports come back with additional medical information, they may well fall within the medical record provisions of the ADA and should be maintained with other medical records. [Note to self: ask the medical review officer to send only a form with the results, nothing else.]
Alcohol testing results pose a little more difficulty under the ADA, but ultimately come out the same as drug testing. The ADA defines “alcoholism” as a disability. Therefore, there is an argument that the results of alcohol testing are medical records. On the other hand, just because someone tests positive for alcohol in their system does not mean they have the disease of “alcoholism.” The regulations do not provide much assistance on this issue. However, the ADA is clear that employers may apply the same conduct rules to alcoholics as other employees; meaning, your clearly defined drug and alcohol testing program explains your expectations and requirements and allows you to test and discipline accordingly. Therefore, it follows that the alcohol testing records should also be kept like drug testing results—separate from personnel and medical records. Again, the law is not as clear on this issue, but assuming the employee has not told you he is an alcoholic and the testing record does not make such assertion, you should maintain the record just as you do the drug testing results.
So, if both testing records and medical records have to be kept confidential and separate from personnel records, why can’t you just keep those two things together? The answer is simple—the people that may have access to one set of records may be totally inappropriate people to have access to the other set of records. Keeping the records separate helps ensure that the wrong set of eyes don’t see the information.
How long do I have to keep the drug and alcohol testing records?
Finally, how long do you have to keep the records? Generally, three years is probably sufficient. Under Oklahoma state law, most employment-related lawsuits are to be filed within two or three years of the alleged wrongful act. Under most of the federal Equal Employment Opportunity laws, an employee must file a charge with the EEOC or state agency within 300 days of the alleged wrongdoing. The employer should receive notice thereafter, though there is no set time frame for that notice to be given. In other words, you should have notice within three years of an employee’s termination if he intends to sue you.
However, depending on your business, yet a third law, the Occupational Safety and Health Act (OSHA), may be implicated and require you to keep the testing records even longer—30 years. OSHA requires the maintenance of certain medical records where an employee is subject to toxic substances or harmful physical agents as part of their employment. The law requires that those records be maintained for inspection for 30 years. According to guidance from the Department of Labor, the access and record maintenance provision only applies where the employee may be exposed to “toxic substances or harmful physical agents” as a part of their occupation. Only if your business is included in that definition do those drug and alcohol testing results need to be retained for the 30 years.
Just remember the purpose behind these various laws. The effort is to maintain a balance between the employer’s need and right to maintain a productive and safe workplace, the employee’s right to privacy, and the public’s interest in preventing discrimination and encouraging help for substance abuse. So, if you choose to test for drugs or alcohol, keep the testing records separate from other records so that only those who have a need to know stuff, know stuff.
By Sharolyn C. Whiting-Ralston, firstname.lastname@example.org and Kristen L. Brightmire, email@example.com