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Maintaining confidentiality when everyone seems to be “in the know”
That’s tough – we get it. Small companies can feel like families (and many often are). After all, you spend a lot of time together, pull together to help each other out in difficult times and celebrate life’s milestones with one another. It feels like everyone knows everybody’s business – and in some cases that’s probably true.
As program administrator of your DFWP program, it could feel natural and tempting to share suspicions you have about an employee’s alcohol/drug use with a peer. And, if someone were to test positive on a drug test – which would likely evoke feelings of shock, overwhelmedness and maybe even anger – it might be difficult to keep that to yourself. Those are all natural reactions, but should only be shared with those who have a legitimate business need to know within your organization.
While an employee has the freedom to discuss their personal matters with whomever they choose, it’s important that you as a DFWP program administrator control what you discuss and with whom you discuss it. It’s important to know what information needs to remain private or only communicated to the necessary people. Let’s outline some common pieces of confidential information and then discuss who may need to know about it.
What’s confidential, anyway?
Information related to your DFWP program is sensitive in nature and often relates back to an employee’s health or personal information. If your employee is diagnosed with a substance disorder, for example, it should be handled with the same sensitivity as other medical issues. It’s the employee’s right – not management’s – to decide what is and is not shared about their medical issue.
Examples of confidential information could include
- drug test results (all results, even the negative ones)
- physical/medical exam records
- results and recommendations from an alcohol/drug assessment
- treatment progress or reports
- knowledge of an employee’s suspected problem
- knowledge an employee is going for a test or assessment/treatment
Reach out to your attorney to confirm that your current practices match any regulations to which your organization may be subject.
So, who has a need to know?
Generally, people who have a need to know will have direct supervision of the employee or be a decision maker in the company (e.g., company owner or president, upper management, program administrator). They may need to adjust schedules and/or observe the employee upon return or weigh in on how to handle the situation.
There are a few other factors to consider when deciding who to talk to about confidential information, such as the trustworthiness of the person and the relationship between that person and the employee being discussed. Both of these could complicate the matter and compromise the confidentiality of the employee’s information. Discuss how to navigate this situation with your decision-making team.
What can be done to maintain confidentiality?
Employers are responsible to maintain the confidentiality of sensitive DFWP-related information and only disclose it under very limited circumstances. Therefore, as best practice, employers need to have strict procedures in place to protect the rights of the employee around confidentiality. This includes
- securing, in a confidential manner, any information such as an employee’s records involving drug test results as well as assessment and treatment reports
- storing this information in a secure location, separate from the personnel file
- sharing this information internally only with those who have a “need to know”
- sharing externally, adhering to the specifics and only when the employee has provided written authorization to disclose specific information to specific entities for specific purposes
Additionally, employees need to understand what constitutes confidential information and that there could be consequences for repeating that information unnecessarily. Supervisors also need to be trained on when and with whom they should share information about an employee’s use or alleged use of a prohibited substance.
Once confidentiality is breached, it’s too late to educate the employees and/or supervisors involved. To proactively prevent the questionable sharing of information, consider including this discussion in an upcoming staff meeting, company communication or drug-free workplace training. This best practice protects the employer and employees from the potentially negative consequences of mishandled information.
The content of the article is meant for informational purposes only and not for the purpose of providing legal advice. As such, it should not be used as a substitute for consultation with a legal professional or other competent advisors. Please contact a licensed attorney to obtain advice with respect to any legal issue discussed in this article or regarding a situation specific to your business.