More and more, clients for whom we perform drug and alcohol testing services are requesting additional information on their workers who undergo this testing as part of a fitness for duty assessment. While we continually strive to provide employers with the information the employer needs to determine fitness for safety sensitive duty, there are limitations to the amount of information we can and should release. This post will provide you with some insight into the privacy legislation that applies to the reporting of alcohol and drug test results in Canada.
Firstly though, we strongly recommend that as an employer, you think carefully before asking your drug and alcohol testing provider for additional medical information.
Consider these questions:
- Do we really need this information? What would this information be used for?
- Could we be legally challenged for asking for this information under the guise of coercion?
You may want to seek legal advice on this matter before requesting additional medical information from your service provider. We also encourage all requests for additional information to come from a health care professional at your company who is responsible for determining fitness for duty.
As a service provider, our MROs have legal and professional obligations to maintain patient confidentiality in accordance with the Personal Health Information Protection Act (PHIPA) and other federal and provincial legislation.
Our MROs treat alcohol and drug test results as medical files and therefore are in compliance with all applicable regulations around the release of medical information, including those implemented by their governing authority (i.e. College of Physicians and Surgeons).
This means that medical and personal information privacy law take priority over other non-regulated guidelines (i.e. Canadian Model for Providing a Safe Workplace). For example, although Appendix A.I, Section II: Subsection 27 and Section III: Subsection 21 of the latest version of the Canadian Model suggest that a safety advisory notification can accompany a negative lab-based urine or oral fluid drug test result, the MRO may be in a position to identify and report that an imminent safety sensitive risk exists but it does not mean the MRO is obligated to disclose the name of the medication nor the diagnosis to the employer.
DriverCheck typically reports the following in relation to a lab-based positive drug test:
- A test that is positive, including the name of the drug(s) that tested positive;
- A test that is verified by the Medical Review Officer (MRO) as negative, without naming the drugs/medications that tested positive at the lab when proof of valid medical use has been provided to the MRO;
- A refusal to test due to specimen adulteration or substitution, or a cancelled test; and
- Safety sensitive matters may be reported, especially where an imminent serious safety risk exists (i.e. multiple sedating medications that together pose a potential safety risk). However, precise medication names and diagnoses may or may not be divulged relating to applicable circumstances and applicable privacy law.
Unless prohibited by specific law, the custodian of medical and personal information (i.e. MRO) is obliged to release such information to the donor/patient or to another party if so directed and authorized to do so by the donor/patient, unless the release of such information poses imminent serious risk to the donor/patient or to another party. Said another way, without the donor’s/patient’s consent, such information cannot be released. At DriverCheck, written consent from the donor/patient is required.
Where a significant health and safety risk occurs for a donor/patient, co-workers, and/or the general public, the custodian may be protected under various laws in various jurisdictions for releasing such information even without the donor’s/patient’s consent, and in some cases, may even be required by law to release such information (such as provisions under certain provincial Highway Traffic Acts requiring a physician to release such information to the motor vehicle licensing body).
Did you find this post helpful? Let us know by emailing us, or reach out to us on Twitter, Facebook and LinkedIn! If you have any questions about the release of medical information to employers, we encourage you to reach out to us!