Resource Center

Drug Testing and the FCRA

Question: Are drug tests considered “consumer reports” and subject to the Fair Credit Reporting Act (“FCRA”)?

Response & Analysis:

It depends. Section 603(d) of the FCRA sets forth the general meaning of a “consumer report,” defining it as “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used…as a factor in establishing the consumer’s eligibility” for, among other things, “employment purposes.”

But while drug tests do bear on a consumer’s “character, general reputation, personal characteristics [and] mode of living,” Section 603(d)(2) cites some exclusions to the definition of “consumer report.” Specifically, Section 603(d)(2)(A)(i) excludes any “report containing information solely as to transactions or experiences between the consumer and the person making the report.” Thus, when a drug testing laboratory provides the results of a drug test directly to an employer, such report is based on the lab’s transaction/experience with the consumer and not considered a “consumer report” and subject to the FCRA.

If the results of a drug test, however, are communicated by a third party consumer reporting agency (“CRA”) to the employer, such exclusion does not apply and a drug test would be considered a “consumer report.” The Federal Trade Commission specifically addressed this issue in Islinger, FTC Staff Op. Letter (June 9, 1998), when it distinguished between drug results reported directly to employers by labs (which the FTC states are not “consumer reports”) and drug results reported by intermediaries that are CRAs and regularly engage in assembling or evaluating information to furnish/sell to third parties. Because a CRA is providing the results, the drug test report constitutes written, oral or other communication made by a consumer reporting agency about a consumer’s “character, general reputation, personal characteristics, or mode of living” and therefore falls squarely under the definition of a “consumer report” not covered by any exemptions.

While the Medical Review Officer (MRO) process, whereby a licensed physician from the CRA reviews the laboratory results with the consumer prior to providing the consumer report to the employer, allows the consumer to dispute the drug test results, the pre-adverse and adverse action notification requirements technically still apply to such results because the drug test report is a consumer report. Although it may be redundant to provide written notification of the same, given that this is a gray area, it may be wise to err on the side of providing the results in writing as well.

All Rights Reserved © 2017 Truescreen, Inc.
This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

Even our RFP PROCESS is state-of-the-art.

Find out why
RFP Kit

What Our Clients Are Saying

The service you provide at Truescreen has been the best I have ever seen in comparison to other vendors I have worked with in the past! You guys rock!

Talent Acquisition Specialist
Retail Store Chain

I am very impressed with your company’s customer service, and the Truescreen portal seems to be an intuitive, user-friendly design.

Learning Coordinator
Public College

Our team loves working with Truescreen and the expedient, thorough service and results we get from you.

Human Resources Executive
Large Hotel Chain

I appreciate all your hard work ensuring that individuals are cleared through our processes. Truescreen makes my job so much easier and less stressful.

Human Resources Analyst
Large Academic Institution
Sending...
Thank you for your interest in Truescreen. We have received your message and will contact you within one business day.
Our apologies, there was an error processing your request.  Please resubmit your message or contact us at 888-276-8518.
You have exceeded the number of attempts to submit this form. As a result, your IP address has been temporarily blocked.
Our apologies, there was an error processing your request.  Please resubmit your message or contact us at 888-276-8518.

Get In Touch

Contact Us *fields required

What are your Interests?optional

You are leaving Truescreen.com

Ok, Continue Cancel

×
×