Must all companies follow the FCRA guidelines for drug tests?

It depends. Employers often use the term “background check” to describe a process that can include one or any combination of screening tools, including criminal records checks, credit reports, motor vehicle reports, reference checks and drug test results. The Fair Credit Reporting Act (FCRA) requires, among other things, that employers provide disclosure and obtain consent before securing a consumer report.

The Federal Trade Commission (FTC) describes a consumer report as follows: “A consumer report contains information about your personal and credit characteristics, character, general reputation and lifestyle. To be covered by the FCRA, a report must be prepared by a consumer reporting agency (CRA)—a business that assembles such reports for other businesses.”

The FTC explains, “An intermediary that retains copies of tests performed by drug labs and regularly sells this information to third parties for a fee is a CRA whose reports of drug test results are ‘consumer reports’ covered by the FCRA.”

In summary, some background check companies will include drug test results in their reporting services. In this case, it is likely that the drug test will be considered a consumer report. On the other hand, if an employer obtains the information directly from a drug-testing lab, it is less likely to be considered a “consumer report” and subject to the FCRA. The FTC offers specific guidance on drug tests as consumer reports.