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Timothy Smith
Timothy Smith, Lawyer
Category: Employment Law
Satisfied Customers: 2019
Experience:  In-House Counsel for State's Largest Agency
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Recently I was pulled for a random drug test at my place of

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Recently I was pulled for a random drug test at my place of employment.
After giving the urine sample to the nurse I asked if I had needed to disclose any medications that I was currently on. They told me no not at this time. I am a Type 1 Diabetic that takes insulin daily and had also been fighting a cold off for the past few days and had been taking a well known cough/cold medication that contained pesudoefedrine in it.
When the results from my test came back it stated that I had been tested positive for amphetamines. After telling them what my medications were and about the cough/cold medicine the company stated that I was very unlikely to have a false postive reading because of the cough and cold medication. After doing reasearch online I come to find out it actually is very likely to have a false positive. Of course the company does not believe me so they offered me a "last chance agreement" so I could still work there. Now I will have to submit to many random drug tests for the next 5 years along with drug rehabilitation counseling and pay money out of my pocket for something I am wrongly accused of. I have already tried to have our union help me but we are still in the middle of negotiating a contract between the company and the union so there is ALOT of grey area when it comes to this. Am I able to take the company to court for defaming my name? Also, the test I was submitted to was a DOT test. Would the results on this test be able to determine this was cough and cold medication and not an illicit drug?
Submitted: 10 months ago.
Category: Employment Law
Expert:  Timothy Smith replied 10 months ago.

I hope this message finds you well, present circumstances excluded. My name is XXXXX XXXXX I am an attorney with over 10 years experience in dealing with employment law matters, including drug test information. It is an honor to be able to assist you with this matter. I will answer your questions in the order in which they appear.

 

Am I able to take the company to court for defaming my name? Unfortunately, probably not on defamation grounds. To win a defamation suit, you must show that there was a false statement made about you that other third parties could hear, that the speaker knew to be false, or had reason to believe was false, and that you received harm as a result. The catchy issue here will be "false or had reason to believe that they knew it could be false". It is a failed drug screen and you are right that this is a very common false positive. However, the mass-spec machine that runs the test sees them as the same thing. Therefore, defamation would be hard to prove.

 

You may be able to have an injunction issued by a court which would preclude the necessity for you to adhere to the provisions of the "last chance agreement". In that case, you would only have to prove that this action can or will cause irreparable harm to you and that there is no other avenue of recourse. If you are wanting to go the court route, that is certainly something to think about. My legal opinion is that a suit for defamation, or the like, would probably be unsuccessful, but a filing for injunctive relief has a very good chance of succeeding.

 

Would the results on this test be able to determine this was cough and cold medication and not an illicit drug?

 

Probably not. You were administered a very generic and cheap broad test. It is unlikely that it would be able to tell the difference in a cold medication and other amphetamines. If they saved a sample, then they could conceivably run a more specific mass spectrum test and differentiate. Those test are expensive and therefore, even if they did save a sample, it is unlikely they would retest for that purpose.

 

Moving forward, I would recommend that you either immediately file for injunctive relief in an attempt to have this determination thrown out, or in the alternative (and certainly the path of least resistance), continue to work with your union rep in attempting to resolve this issue without litigation, even if it means submitting to a few test in the lag period before reaching a rational and pragmatic agreement with your employer. There really is no better or worse way. The first way may yield quicker results, but at the expense of further damage to your relationship with your employer...the later may mean taking test in the mean time, but better preserving your relationships with the employer moving forward.

 

Let me know if you have any additional questions or concerns!

 

 

Customer: replied 10 months ago.
If I can get my hands on the results of the test do you think I would be able to have a "leg to stand on" that would show the level of presumed amphetamines in my system was low enough to indicate cough/cold medication? Or will the results just say positive or negative?
Expert:  Timothy Smith replied 10 months ago.

If I can get my hands on the results of the test do you think I would be able to have a "leg to stand on" that would show the level of presumed amphetamines in my system was low enough to indicate cough/cold medication?

 

I think it would be legally inconclusive at this point because the half-life of the particulates may have been compromised with the passage of time, unless you can find a dried specimen.

 

Phillip, to me the better argument goes to the totality of circumstances and your passing the subsequent test. However, it may be work some effort to unearth the original specimen.

Timothy Smith, Lawyer
Category: Employment Law
Satisfied Customers: 2019
Experience: In-House Counsel for State's Largest Agency
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