Let me explain the "law". The first is the contract that the testing lab has with your employer. That is contract law and they have agreed to share information so no other law is going to stop the lab from reporting as they see fit. However, the value of this information to the employer is highly suspect in your case and what they do with that suspect information is the law as between you and your employer.

The law is ripe with cases since drug testing became an issue and when it can occur as opposed to privacy and human rights. It is now settled that such tests in certain industries is not a violation of rights but my my opinion of the history is that it assumes things are done correctly. Hence the protocol that you discussed.

One of the ways this came to the fore was because Unions in Western Canada agreed to a process that otherwise could be discriminatory. So, your Union should be all over this one.

I have read several articles on the topic and although I was learning myself, all confirmed my initial hunches that there is a general assumption of fairness that is emphasized even by the labs themselves.

The "fancy" machine is required in that the confirming test must be by a different process. Even you heard that the second procedure is with a positive. From what I have read, Positive or "tampered with" are occasions when a sample is sent to a confirmation test.

I have learned about false positives, and even false negatives. I found no one who suggested a confirmation test to see if a false negative was true. As suspected, I found no one who suggests that a confirmation test should be used to clear up an inconclusive test.

A few of the articles I read where from labs and we are not supposed to send people to business web sites. However, if you search employee drug testing in Canada, you will find a few and each seems to stress that accuracy is key all bragging that they are the ones who can perform. One did note however that any accusation of inaccuracy will likely result in a grievance which may well be where you are.

One article I found interesting and can share follows. The cut off levels have changed since it was written but you will see that the tone is one of absolute integrity and professionalism by labs.

http://www.monzir-pal.net/Poisons%20and%20Drugs/Lecture%20material/Drug%20testing%20methods.pdf

I was not surprised to even find a couple of old Just Answer questions from people wanting to know if they had to take a test AGAIN when a test was inconclusive. My intuition, personal advice and everything I have read leads me to the opinion that a fair analysis is to test again and not to send an inconclusive test to a confirming test.

We do not know if the initial equipment was in error. You could have had an unusual amount of water that day. There could be conflicting medications...the list goes on and on but everything I see indicates the fair procedure is to do the initial test again when you have in inconclusive one. I would also accept the concept that the first step is not counted and only the second one counts. Both concepts speak to the fairness and needed professionalism in such matters.

We do not know if the first test was an error. It was inconclusive and common sense tells me that you test again and again until there is a result. If positive or a suspicion of tampering, it goes to review. In my opinion the error is not testing again.

So, the law that can help you is your collective agreement and the power to grieve any possible employer over reaction. The obvious is to start all over again which in consultation with your Union you may desire to offer. Or, the employer being reasonable might just accept that the only number they have is 46.

These tests even if positive do not prove intoxication at the time of the test or future intoxication. That is why the process must be fair.

I thank you for your question. I hope I have assisted. If you need more, just let me know.

Good luck. Common sense is on your side. Let the law follow that.

Tom