Monday, October 24, 2011

Clear Statement Of Confidentiality Part Of Written Policy Mandate

The Arizona Medical Marijuana Act (AMMA) is prompting risk-averse employers to take another look at implementing drug testing. One important reason for this arises from amendments to the state's Drug Testing of Employees Act that the Arizona Legislature adopted earlier this year to ease workplace implementation of the voter-initiated AMMA.

Compliance with the technical requirements of the Act is the price of admission for taking advantage of the legislative lifeline the state senators and house members threw out there. One final technical requirement deserves consideration, before Arizoneout turns to the amendments themselves and what peace of mind they can offer Arizona employers.

The mandate for confidentiality is deeply embedded in the Act, as is the fundamental requirement of a comprehensive written policy giving employees notice of the employer's procedures and expectations.

The Act requires that the written policy state the employer’s policy regarding the confidentiality of the test results. This is another area where one provision of the Act limits the employer’s discretion regarding what its policy must be. The Act mandates that all communications received by an employer relevant to drug test results are confidential.

What that means is the employer's policy needs to spell out the people in the workplace to whom drug test results can be disclosed. That is and should be a small number. Test results can be disclosed to the tested employee or prospective employee (or another person designated in writing by the employee or prospective employee); and individuals designated by the employer to receive and evaluate test results or hear the explanation of the employee or prospective employee.

The written policy should make it clear who the employer is designating to receive the results and consult confidentially with the employee about positive results. Many employers vest a medical review officer, usually a physician or other health care professional, with this responsibility in the first instance. The medical review officer can review prescriptions and medication history to determine whether the employee is lawfully using certain controlled substances.

Good policies will designate a limited number of people, perhaps the Human Resources manager only, if the business has one on staff, to receive the results of drug tests that are reported as positive by the medical review officer. The written policy should spell out who else in the organization is entitled to know the results, and that group should be small and reasonably characterized as the "need to know" group.

The key is the written policy should set out the confidentiality of its testing program and the limits of confidentiality very carefully and clearly, and should address any ways confidentiality will vary as to lawful medical marijuana use.

Employers need to have policies that properly instruct their medical review officers on when they should report a Qualified Patient (QP) as failing a drug test for marijuana. Arizoneout will explore in future posts what is known -- and what is still very much a gray area -- on what the instruction to the medical review officer should be under the AMMA.

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