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wallstreetfighter
wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 17080
Experience:  14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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I failed a pre-employment drug test for a travel nursing company

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I failed a pre-employment drug test for a travel nursing company that sub contracts for the hospital I now work for. As a result of that, my contract was cancelled. I applied to the hospital itself and am employed by them now. I passed the pre-employment screening test they gave me and today, called me in to be tested because they stated they had 'reasonable cause' to test me. The board of Nursing has stated that they were dismissing this and were not pursuing it any more. Weren't my rights to privacy violated here somehow?

wallstreetfighter :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarification

wallstreetfighter :

Who notified the board of nursing?

wallstreetfighter :

Was it the first employer?

Customer:

Initial notification to the board of nursing was from the travel company. I believe they are required to notify them

Customer:

the travel company is the first employer and the hospital is the 'second'

wallstreetfighter :

They would be required to notify the board,

Customer:

they did

wallstreetfighter :

the second employer may have had suspicion due to the initial review,

Customer:

they were not privy to that information

Customer:

all they knew is that my contract was cancelled

wallstreetfighter :

how did they justify reasonable suspicion?

Customer:

they did not say

wallstreetfighter :

You may have a privacy claim or ADA claim against the prior employer if they released the information to your new employer,

wallstreetfighter :

also, if the new employer obtained private medical information without your permission, that would be a clear HIPPA and privacy matter,

Customer:

how do i go about finding out that information

wallstreetfighter :

However, under the law in NH, an employer can drug test if they have some reasonable suspicion, but that would entail actions such as missing work, or other behaviour,

Customer:

This was my first day at work

wallstreetfighter :

You can send a letter to HR, asking them for the reason for the test,

wallstreetfighter :

if they do not respond, your only other option would be a lawsuit, contesting

wallstreetfighter :

the reasonable suspicion issue,

wallstreetfighter :

It may be that they were told of the prior failed drug test by another employee, and if you can find out who disclosed it, you could bring a lawsuit against the former employer.

wallstreetfighter :

Courts have stated that "reasonable suspicion" determinations to be based on "specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors" of the employee. These observations should be documented by the supervisors making the reasonable suspicion determinations.

wallstreetfighter :

In your case, since you did not work for them, they must have had some prior information,

wallstreetfighter :

If you wish, you can consider a lawsuit against the first employer for releasing your test results without permission,

Customer:

alright

wallstreetfighter :

If you have any further questions please do not hesitate to ask.

wallstreetfighter :

You may want to send a letter first to the former employer threatening legal action,

Customer:

thank you!

wallstreetfighter :

if they disclose any test results, this way if they were the party involved, they will stop.

wallstreetfighter :

If satisfied with our service please provide us with positive feedback, thank you

Customer:

i cant threaten them...

Customer:

i would need proof first

wallstreetfighter :

You may want to wait then until you have some more concrete evidence, but it is a fair bet that they did disclose the results.

Customer:

and that is illegal right?

wallstreetfighter :

yes, they cannot disclose test results without your permission,

Customer:

is the hospital allowed to ask why my contract was cancelled?

wallstreetfighter :

yes,

Customer:

so they would be allowed to say that pre employment screening was unsatisfactory or something like that

Customer:

which would lead the hospital to think drug testing?

wallstreetfighter :

yes,

wallstreetfighter :

it is possible,

Customer:

is the hospital allowed to then say that is reasonable cause

wallstreetfighter :

no, that is not reasonable cause, as per the law stated,

Customer:

alright

wallstreetfighter :

they would have had seen your actions,

Customer:

of which there werent any

Customer:

i havent been there long enough

Customer:

do you know if the board of nursing is required to inform the current employer?

wallstreetfighter :

I would ask again for what caused them to retest you, and give it some time,

wallstreetfighter :

The employer may have contacted the board of nursing to check if their were any recent complaints, or investigations,

wallstreetfighter :

they may have discovered something about the drug tests,

Customer:

should i have refused the testing without proof of reasonable cause?

Customer:

its not a matter of passing it or not

Customer:

its a matter of why

wallstreetfighter :

you could have, but they could have terminated you, and then you would have to had sue them,

wallstreetfighter :

it is better to take the test and be employed, then spend time and money on a lawsuit,

Customer:

shouldnt all of the checking been done prior to my starting work

wallstreetfighter :

yes,

wallstreetfighter :

they should have checked first,

Customer:

and the fact that i passed their pre employment screening...

Customer:

im just wondering where the 'reasonable cause' to test me today came from

wallstreetfighter :

right, they did not have any,

wallstreetfighter :

they may have discovered something about the prior results,

Customer:

ok

Customer:

thank you

wallstreetfighter :

Good luck, and if you have any further questions please do not hesitate to ask.

Customer:

it sounds like all in all they may have been acting legally but it seemed very odd that it happenedd

wallstreetfighter :

Yes, but be on the look out for any further negative action by them against you

wallstreetfighter :

If satisfied with our service please provide us with positive feedback, thank you

Customer:

good point

Customer:

thank you very much

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