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Boston Firefighters and Drug Testing

October 8th, 2007 Posted by Amelia

A controversial case in the Boston area has employers throughout the nation reviewing their policies on drug and alcohol tests in the workplace.

Two brave firefighters died fighting a restaurant blaze in West Roxbury on October 3 when the roof collapsed on them. Each was rightfully given a hero’s burial, with firefighters from across the nation saluting as the flag-draped coffin atop a fire truck passed by.

Two more firefighters are on life support in the hospital after the incident.

Unsubstantiated news reports have cast doubts on the dead firefighters’ condition at the time of their deaths. Reportedly, toxicology tests show that one of the two men had a blood alcohol level of 0.27 at the time of death. The second firefighter showed traces of cocaine in his system. A person is legally intoxicated when the blood alcohol reaches 0.08 in Massachusetts.

According to widespread news reports, there was evidence that the second firefighter had used cocaine in the past, although he was not under the influence at the time that he died.

Family members say that the toxicology reports are wrong. They argue that the lab may have accidentally mislabeled the reports or switched blood samples for analysis.

Some experts concur. At a blood alcohol level of 0.27, an individual likely would not be able to stand up or speak, let along heroically fight a fire. His coworkers would no doubt smell alcohol and be very aware that he was inebriated. Other sources point out that some dental anesthetics can cause a person to test positive for cocaine. It is also fairly common for there to be “false positive” toxicology results for cocaine, although it is not as common for alcohol.

The two firefighters were the first into the flaming building when a grease fire erupted into a 4-alarm blaze. The two are survived by their five children.

The toxicology reports are controversial, because they are part of the autopsy. Autopsies and other private medical records are not to be released to the public under HIPAA, the Health Insurance Portability and Accountability Act. Police have opened a criminal investigation into the leak of confidential medical information to the press in the case.

As almost every employer knows, under HIPAA, an employee’s medical history and current information is confidential. It cannot be shared with coworkers, or become fodder for gossip around the water cooler. Employers are entitled only to specific information that relates directly to job performance.

If, for example, an employee must have time off for surgery, or requests unpaid leave under FMLA (the Family and Medical Leave Act) the employer may request a limited amount of medical information. It is legitimate for the employer to ask for a doctor’s note specifying that the employee has a serious medical condition at that point. However, it is not necessary for the employer to learn the employee’s diagnosis. Even if the employer does learn the employee’s diagnosis, the employer must safeguard that information. Common steps to safeguard information include keeping personnel files in a locked cabinet, shredding medical information removed from personnel files, and not discussing any employee’s medical condition with any other employee.

The truth of the Roxbury fire may never be known, but Boston Mayor Thomas Menino has said that said he will lobby for more drug and alcohol testing under the firefighter’s next union contract. Others question the fact that firefighters don’t have to check in with a supervisor or attend a roll-call at the beginning of the shift.

Many employers are concerned about the possiblity of drug and alcohol use in the workplace – and rightfully so. According to OSHA, the Occupational Safety and Health Administration, many fatal accidents in the workplace involve the use of drugs or alcohol. State laws on drug and alcohol testing vary widely. However, under most circumstances, an employee who is involved in a serious accident can legally be required to undergo drug testing.