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.

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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.

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