Federal Statute Does Not Protect Confidentiality Of Firefighter’s Drug Screen

Steven Payton was employed as a lieutenant with the Memphis, Tennessee Division of Fire Services. On December 10, 2008, Payton submitted to a random drug screen while on duty, and he tested positive for marijuana. Following an administrative hearing, Payton was suspended without pay for 360 hours, and he received a management referral to the City’s Employee Assistance Program.

Approximately six weeks later, on February 4, 2009, Payton was given a return-to-duty drug screen, which was negative. Payton was permitted to return to work, and over the next several months, he passed several follow-up drug screens. However, on May 17, 2010, he again tested positive for marijuana. Following another administrative hearing, Payton was terminated on May 26, 2010.

Payton challenged his termination on the grounds that a federal statute, Section 290dd-2 of Title 42 of the United States Code, provides confidentiality for “records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research.” Payton argued that the statute applied to the City because it received federal funds, that the statute prohibited the use of his May 17 drug test.

The Tennessee Court of Appeals saw it differently. The Court commented that “there is surprisingly little information in the record regarding the nature of the City’s EAP program. However, the City’s drug testing coordinator testified that when the drug test in question was administered, Payton had already been ‘released’ from the EAP and placed in the ‘follow-up program.’ She explained that this is the standard procedure for employees who have completed their ‘treatment status.’

“We find that this testimony provides substantial and material evidence to support the finding that the follow-up drug screen administered to Payton was for disciplinary reasons; it was not for treatment. There is simply no evidence in this record from which we could conclude that the drug screen was for the purpose of ‘diagnosis, prognosis, or treatment.’ Therefore, we agree with the conclusion that the record of Payton’s drug screen was not subject to the federal confidentiality rules.”

City of Memphis Civil Service Com’n v. Payton, 2012 WL 5422518 (Tenn.Ct. App. 2012).