Post Accident Drug Testing in the Headlines

Today’s burning question: I was involved in an apparatus accident last week and our department requires that the driver be tested for drug/alcohol following all accidents that result in over $2500 damage. I passed the test no problem, but the next morning in a newspaper there was an article about the accident naming me as the driver and indicating that I was sent for drug testing. I am upset because the article implies that I was send for testing because I did something wrong. Has the city violated HIPAA by releasing the information that I was drug tested?

ANSWER: For HIPAA to apply – there must be an exchange of confidential health information (protected health information or PHI) between a patient and a provider who is subject to HIPAA. For a HIPAA violation to occur that provider or someone who received the information from the provider in such a way that they remain under an obligation to protect it, must have released it without your consent.

In your case it is unclear who released the information about the drug test: the fire department, the police department, or (perhaps but unlikely) the provider who administered the test. If it was indeed the provider and the provider is subject to HIPAA, there likely would be a HIPAA violation.

The more likely scenario is that the information was released by the city, either through fire department or police department sources. The bare fact that your employer sent you for a post-accident drug test is not something that is part of the patient-provider relationship, confidential, or protected by HIPAA. In sum, I do not see a HIPAA issue (assuming HIPAA even applies to your FD). I’ll open it up to any attorneys out there who see it otherwise. HIPAA can have implications for employers in certain instances. I don’t see a violation in releasing the fact that an employee was sent as part of a post-accident testing policy.

However, HIPAA is NOT the end of the inquiry!!!

State medical privacy laws also have to be considered as well as state employee/personnel laws, local personnel ordinances, and internal regulations to determine if releasing that information to the press was legal. There is also a question about whether the police department (as a city agency) may be considered to be your employer to the same extent as the fire department in the event that they released protected health and/or personnel information.

My guess is – the release of information was legal but it would all have to be thoroughly researched based on state and local laws to know for sure. I would hope your department might use this as a learning experience to protect the reputations of other members in the future. At a minimum – future press releases should indicate that post-accident testing is routine and not based upon any sort of suspicion that the driver was impaired.

In terms of liability for harming your reputation, the fact that the article mentioned that you were tested, in and of itself, is truthful and thus cannot be used to sue your employer or the newspaper for defamation. Defamation requires that a false statement be made and in this case you were sent for testing.

There is another tort that is similar to defamation, called “false light” invasion of privacy. False light invasion of privacy occurs when someone subjects another to publicity that places them in a false light. While defamation requires that a false statement be made, false light only requires that someone be falsely associated with something that an ordinary person would consider offensive and objectionable.

In your case, one could make an argument that by discussing the accident, naming you by name as the driver, and stating that you were sent for drug/alcohol testing, there was a false implication created that you were exhibiting symptoms for which testing was warranted.

False light may be a stretch on the facts. Again – any of the Legal Eagles feel free to weigh in.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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