Jennifer Shea Moeckel, Esquire
Congratulations! You’ve got your pre-employment drug-testing program in place and you are requiring drug screens for all applicants. The results are coming in, and you are hiring or rejecting applicants depending on whether they pass this important condition of hire. After you make your decision, what do you do with the paperwork associated with the drug screen and results? The answer depends on whether the applicant is hired or rejected.
When an applicant is rejected:
Employers with fifteen (15) or more employees are required by Equal Employment Opportunity Commission (EEOC) regulations to keep documents relating to the hiring process for one (1) year after an applicant is rejected. Documents to be retained for a year include employment applications, drug-test results, reference and other background check documents, etc. Retaining documents about the hiring process for one year makes good sense for smaller employers, too, because of the risk of “failure to hire” cases claiming discrimination on the basis of age, race, national origin, disability, sex, sexual orientation, pregnancy, religion, military status, etc. Employers that discard employment applications and other hiring materials immediately or shortly after rejecting an applicant have nothing left to establish a defense to these claims.
During the year that the hiring information is retained, drug-test results and other information about the applicant should be kept confidential. When the information is ultimately discarded, it should be shredded or otherwise destroyed using a method that will ensure that the information is not inadvertently disclosed.
When an applicant is hired:
Employers with fifteen (15) or more employees must establish a separate medical file for each employee, in addition to the employee’s personnel file. EEOC regulations require that any medically related information be maintained in an employee’s confidential medical file and not placed in the employee’s regular personnel file. Medically related information includes drug-test results, second injury fund forms, and any Workers’ Compensation forms, doctors' notes, documents related to medical leaves of absence, etc.
Employers must treat all medically related information as confidential. The confidentiality obligation continues even after the employment relationship ends.
Employee medical files and personnel files must be maintained throughout the duration of the employment relationship and for a period of years following employment termination. There are different state and federal laws requiring various retention periods for documents that may be in medical and/or personnel files. To ensure proper compliance with the laws applicable to the employer, each employer should consult legal counsel in determining how long medical and personnel files should be maintained, in what form (hard copy v. electronic), and whether a written records retention policy would benefit the employer.
(Jennifer Shea Moeckel is a shareholder in the law firm of Devine Millimet, a Silver Association Partner, where her practice is devoted exclusively to employer counseling and litigation involving employment matters. She also frequently lectures before employers and professional groups on labor and employment topics and conducts training for human resource professionals, supervisors, and employees on all aspects of the employer-employee relationship. She can be reached at 603-669-1000 or at firstname.lastname@example.org.)