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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4823
Experience:  Extensive experience representing employees and management
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I work for a union as an electrician. I was sent to a job

Customer Question

I work for a union as an electrician. I was sent to a job that required a drug test, not for the employer, but to work on the grounds at the academy where the job was located. The test came up positive. I was told that I would receive a phone call within tree days to ask for a list of prescriptions. A week later I finally get a call and they said I had three days to get a list of prescriptions faxed directly from the pharmacy, which proved impossible. Is there any way to disqualify this drug test if the procedures were not up to par? By the way, the test was collected in a outhouse and conducted on the tailgate of a pickup truck on a construction site. Thank you in advance.
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Joseph replied 11 months ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

When you say that the drug test came up 'positive,' was it for one of the prescription drugs that you were taking (and had prescriptions for) or another drug?

Also, did you ask if there was any other way to verify your prescriptions. For instance, you yourself could show your prescription bottles, which show the prescription dates on them, etc.?
Customer: replied 11 months ago.

The test came up positive for amphetamines and methamphetamine, I am unsure if my prescriptions would cause this result or not, however I have not been given a realistic opportunity to submit my prescriptions. The medical review lady that called told me to have a list of prescriptions faxed directly from the pharmacy. I get prescriptions from Kaiser and have to get the list from my doctor which I am still working on and it was not possible to simply have the list faxed from the pharmacy. They gave me no other alternative method of submitting my list of prescriptions nor are they giving me the chance to submit over the counter meds. I am also wondering if any of this is in violation of the HIPPA act. Thank you.

Expert:  Joseph replied 11 months ago.
Can you tell me if by any chance you take adderall or some form of ampehtamine for attention deficit disorder or another condition?
Customer: replied 11 months ago.

I don't take any prescription for ADD, however I do takes quite a few prescriptions for various conditions. Would you like a list? I've been told that the union will no longer employ me until this matter is resolved so any angle at disqualifying this test would be very beneficial. Thank you so much for your effort.

Expert:  Joseph replied 11 months ago.
Hello Larry,

Unfortunately, California only provides for regulations of drug testing for state employees, not for private employees. While it is illegal for the government to use ‘on site’ testing, such as the one that you were subject to, it is not illegal for a private employer to use it.

That said, there are no laws, rules, or regulations that the drug testing company is violating here, even though it made it difficult (if not impossible) for you to get your list of prescriptions to them, and refuses to take a list of your over the counter medications.

However, if the union is using this against you, then I would definitely suggest that you file a grievance with your union representative, since union members are only supposed to be subject to drug testing if provisions for drug testing are contained in their collective bargaining agreement. You should also not be subject to any discipline for failing a test that seems to have some flaws with it.

(If you were an at-will employee, you would simply be stuck with the results of the test, and would have no right to appeal the decision even if it could be determined that you had a false positive).
You should also see if drug testing is covered there, since the CBA may give you appeal and complaint rights that you don’t otherwise have under California law.
Also, I regret to inform you that nothing that you mentioned would present any violation of HIPPA laws. The drug testing company is definitely free to request a list of prescription drugs to try to rule out false positives and determine if you have a prescription that is also a controlled substance. (Are you sure that you can't contact your pharmacy to get a list faxed over. Even if the pharmacy is at Kasier, they should be able to do it). If not, I'd suggest that you ask to submit them another way.

One thing I noticed in my research is that bupropion (wellbutrin) is the most common drug that leads to false positives for amphetamine and methamphetamine. Are you on wellbutrin by any chance?

I realize that the above information is not what you wanted to hear, and I sincerely XXXXX XXXXX had better news to give you, but I hope you appreciate a direct and honest answer to your question. It would be unprofessional of me and unfair to you to provide you with anything less.

I do hope this information is helpful.

Please ask any follow up or clarifying questions.
Thanks and best of luck!
Customer: replied 11 months ago.

Actually, you provided a hidden gem..... I happen to have taken wellbutrin recently. I want to sincerely XXXXX XXXXX for your time.


 


L. Mullen

Expert:  Joseph replied 11 months ago.

Thank you; happy to help. This may be of particular interest:

 

 

http://www.ncbi.nlm.nih.gov/pubmed/21191682

Joseph, Lawyer
Satisfied Customers: 4823
Experience: Extensive experience representing employees and management
Joseph and 3 other California Employment Law Specialists are ready to help you
Expert:  Joseph replied 11 months ago.
Hello Larry,

Thank you for your positive rating of my service! It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should you have future legal questions.

Please request me directly by placing “to Joseph” at the beginning of your question and/or requesting me directly in California Employment Law.

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

Thanks again and best of luck,

Joseph

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