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Legal Update
Can You Make Blood Tests Mandatory?
C. Todd Drake
Publish Date: October 10, 2007

If you suspect a tech is using cocaine, can you force her to undergo a blood test? What about a nurse who's the partner of a patient infected with AIDS? Can you force her to be tested? The not-so-simple answer: It depends. The courts have ruled that blanket mandatory testing is unacceptable, but testing is compelled when you have a reasonable suspicion that an employee may be putting herself, other employees or patients at risk. Here I'll examine some of the many legal responses to these questions, as well as the employee-testing dilemmas you face, in order to give you a better idea of what you can do if you're ever presented with such a tough call.

Do's and don'ts of employee blood tests
When it comes down to it, you may only request drug tests for employees when you have objective, illustrative facts that support a reasonable suspicion of drug use. Document the specifics, such as type of drug, when and where the drug was taken, and observations of erratic or unsafe behavior. Try to obtain corroboration from other staff and discuss the information with other facility leaders before you request a drug test.

Do the same for situations involving HIV and hepatitis. Before you ask an employee to consent to a blood test, you should be able to demonstrate why you're suspicious of infection and the potential risk to patients and staff. While testing may be found to be legal without such specific factual findings, you'd do better to protect yourself by basing your actions on fact. Here are some guideposts.

  • You may not mandate blanket testing for bloodborne pathogens for healthcare workers.
  • You may encourage healthcare personnel who perform at-risk procedures to undergo voluntary blood tests regularly (determine your facility's list of at-risk procedures and check with your state healthcare authority for its rules regarding at-risk procedures and employee blood testing). If they choose to share their results with you, keep them confidential.
  • If you suspect an employee is using illegal drugs or is infected with HIV, or hepatitis B or C, either because of behavior, or because a patient became infected after a surgery during which an exposure may have occurred, document evidence for your suspicion. In the case of suspected drug use, try to obtain corroboration from other staff.
  • Before requesting that an employee consent to a blood test, be able to demonstrate why you suspect drug use or infection and what the potential risk to patients and staff is.
  • Discuss your findings with upper-level management before requesting drug tests.
  • If you do request testing, keep results confidential among staff.

Potential harm plus potential risk
One of the first cases to address mandatory HIV testing involved an LPN whose roommate, a patient at the hospital, was known to have AIDS. The LPN administered medications, changed dressings, performed catheterizations and started IVs while working in the ICU, emergency department and surgical recovery room; he was known to also have HBV. The head of the hospital's infection control committee met with him, explained the hospital's concerns and requested that he consent to HIV testing. The nurse had already been tested and indicated he would provide the hospital with the results. When he then refused to provide the test results, the hospital terminated his employment.

C. Todd Drake, Esq. In upholding the termination, the court found the hospital had an affirmative duty to provide "a safe environment, and safeguard the health of all patients and employees." The court noted that the hospital had established infection control procedures intended to prevent disease transmission and that, to fulfill its duty of protecting patients, the hospital had to know whether the nurse was HIV positive, information that could only come from the HIV test.

The court also rejected previous case law requiring that the risk of transmission to patients be "significant." The court concluded: "Even though the probability that a healthcare worker will transmit HIV to a patient may be extremely low and can be further minimized through the use of universal precautions, there is no cure for HIV or AIDS at this time, and the potential harm of HIV infection is extremely high."

Similarly, a New Jersey court found that the Medical Center of Princeton acted properly in initially suspending, and then terminating, a surgeon's surgical privileges, when the surgeon was diagnosed with AIDS. The court found that hospitals have a duty to restrict healthcare workers from performing invasive procedures where the procedure poses any risk of harm to the patient. The court noted that even though the risk of transmission in an individual operation was small, the surgeon's continued performance of surgeries multiplied the opportunities for transmission. The court further held that the hospital was correct to disclose the physician's HIV positive status to patients.

How slim is the risk to patients from infected healthcare personnel who perform invasive procedures? Very. In prospective studies of healthcare personnel, the average risk of HIV transmission after a percutaneous exposure to HIV-infected blood has been estimated to be about 0.3 percent. Data on HBV, a more readily transmitted virus, also shows that the risk of transmission is extremely low, and occurs almost exclusively when infection-control procedures aren't followed.

A reasonable suspicion
A Missouri court ordered reinstatement and back pay for two hospital employees who were fired for refusing to take drug tests. The hospital requested the drug tests after receiving two telephone calls from an anonymous caller who complained of having to work with "potheads." The caller identified the two employees, but did not identify what drugs had been used or when or where use had occurred.

In ruling that the hospital didn't have reasonable suspicion to order a drug test, the court held that information from an anonymous caller, without corroboration, was insufficient. Instead, the hospital should have asked for details about the alleged drug use and made an attempt to corroborate them. The court also noted that the employees' refusal to submit to the drug tests did not create the reasonable suspicion necessary to permit the tests.

C. Todd Drake, Esq.\ Similarly, a North Carolina court found that hospital officials did not have reasonable cause to request that two healthcare technicians submit to drug tests after a co-worker informed her supervisor that she found a straw with a white powder residue in a chart room where techs had been present. The co-worker told her supervisor that she suspected the two were using illegal drugs. The pair were searched and found to have no drug paraphernalia on them. Hospital management requested that they take drug tests, which the technicians refused. Three days later, the technicians had drug tests performed by an independent physician; both tested negative. Despite this, the technicians were fired for refusing in the first place to consent to the requested drug tests.

The court held that the hospital had no justification for requesting the drug tests or for firing the technicians. The court noted that the only information available to the hospital's management was nonspecific and from only one individual. No other employees corroborated the suspicion of drug use, and there was no evidence that the techs were under the influence of drugs at the time the drug tests were requested. Most significantly, there was no evidence that the technicians were doing anything that imperiled any patients.

Voluntary, not mandatory
The American Medical Association and American Nurses Association have adopted resolutions urging physicians and nurses to undergo voluntary HIV testing, particularly if they're involved in invasive procedures. But given the existing data on the risk of transmission by healthcare personnel, no major medical association has recommended that mandatory testing be implemented.