Privacy Issues in the Workplace

4. C ONSEQUENCES OF P RIOR V IOLATIONS If the employer obtains information that the employee has violated a DOT agency drug and alcohol regulation, the employer must not allow the employee to perform safety-sensitive functions unless the information indicates that the employee has subsequently complied with the DOT return-to-duty requirements. 293 5. D UTIES OF R EQUESTING AND R ECEIVING E MPLOYERS The requesting employer has the duty to provide the prior employer with the employee’s written consent to release the information. 294 The employer who receives a written consent must review it and then “immediately release the requested information” to the employer making the inquiry. 295 The information may only be released in a manner that ensures confidentiality. 296 6. R ECORD -K EEPING An employer who releases information must maintain a written record of the information released, including the date, the party to whom it was released, and a summary of the information provided. 297 The employer requesting the information must maintain a written, confidential record of the information obtained or of its good faith efforts to obtain the information. 298 The employer must retain these records for three years from the date of the employee first performed safety-sensitive duties for that employer. 299 Request Information Directly From the Employee or Applicant. Finally, Section 40.25 requires the employer to also ask the applicant or employee whether he or she has tested positive, or has refused to test, on any pre-employment drug or alcohol test for any safety-sensitive job applied for but not obtained during the prior two years. 300 If the individual admits that he or she has had a positive test or has refused to submit to testing, the employer must not use the individual to perform safety-sensitive functions until the individual documents successful completion of the return-to-duty process. 301 C. M AINTAINING D RUG AND A LCOHOL T EST R ESULTS For purposes of complying with privacy laws, employers should treat drug and alcohol test results and information with the same care as with the results of medical examinations. This includes strictly maintaining the confidentiality of the drug and test results and storing them in a secure place that is separate from regular personnel records. An employer has an affirmative duty to prevent disclosure of such information without the employee’s consent and therefore must establish appropriate procedures to ensure the confidentiality and protection from unauthorized use and disclosure of that information. For a detailed discussion of these requirements, refer to the section in this workbook pertaining to maintenance of medical information.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 94

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