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Andrea, Esq.
Andrea, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12554
Experience:  25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
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Got tested at work test that will positive and a benzo. I

Customer Question

Hello got tested at work for durg test that will positive for opiates and a benzo. I have a prescription for the opiates from September and still have some left. What I don't have is a Rx for the benzo which I have access to at home because my wife has a rx for it and other narcs due to he back issues. It's easy to ask and take one when your i pain. Employer said they have reason to believe I am on something although I have never be cought using anything at work. They said my behavior is suspissios enough to call for a drug test. I know what the result are going to show cause I took some tables the night before. Ca RN
Submitted: 1 year ago.
Category: Employment Law
Expert:  Andrea, Esq. replied 1 year ago.

Hi, my name is ***** ***** I will be glad to help you this evening, but part of your question was cut off and ends as follows - "I know what the result are going to show cause I took some tables the night before. Ca RN......" Please be kind enough to complete your last sentence and your question so that I can give you an Answser that you can work with,

Thank you,

ANDREA ​

Customer: replied 1 year ago.
I am a Ca RN. The only thing they said was suspissios behavior. But was never found falling asleep or slurring my speech. They did not disclose what the behavior was.
Expert:  Andrea, Esq. replied 1 year ago.

Also, please give me the following information -

1. In what State did this occur ?

2. Did your employer give you any advance notice that you would be drug tested ?

3. Do you believe that your behavior was suspicious enough to warrant drug testing ?

THANK YOU AGAIN,

ANDREA

Customer: replied 1 year ago.
State of Ca. No they did no give me a notice.
I'm not sure. I take frequent trips to the Bathroom when I am there, everyone knows that meaning coworkers. Sometimes as a nurse we put thing in out pockets like syringes turnaquets, meds. I don't know what they saw that granted them this suspission as they did not say. I was a break relief that day and handled many patients in different areas
Expert:  Andrea, Esq. replied 1 year ago.

Thank you for your additional information. My typing speed would not win me any prizes, so I appreciate your kind patience. I will be completing your Answer momentarily, but would like to double check something under California law, Okay ?

ANDREA

Customer: replied 1 year ago.
Ok
Expert:  Andrea, Esq. replied 1 year ago.

Thank you for your patience. When determining whether an employer’s drug test was legal, California courts balance the employer’s reason for testing against the employee’s legitimate expectation of privacy. California statutes do not have specific procedures for drug testing, so it becomes “a balancing act”, however, employers are more likely to prevail if they take steps to diminish an employees’ privacy expectations, for example, by adopting a written policy explaining when drug testing will be required.

Here are some defenses, see if you can place yourself in any of the following protected classes of employees

1. Disability discrimination. An employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. So, if you can prove that any drug which shows up on your drug test was legitimately prescribed for you, this would exonerate you;

2. Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender – for drug testing could face a discrimination claim by the employee that was subjected to the drug testing;

3. Invasion of privacy. Even an employer that has a legitimate reason to test might violate an employee’s right to privacyin the way that the employer conducts the drug testing privacy in the way it conducts the test. For example, requiring an employee to disrobe or provide a urine sample in front of others could be a privacy violation of the employee’s right to privacy;

4. Defamation. An employee might have a valid claim against his employer for defamation of character, if the employer publicizes that the employee tested positive, if the employer has reason to know that the test might not be accurate.

So, if you can place yourself in one of the above 4 categories, you will be “home free. For example, if you can produce a valid prescription from your doctor for any drug that shows up on the drug test, again you will be “home free”. I wish I could give you more categories, but only the above are recognized under California law, so please do not hold that against me.

Please let me know if you need clarification on anything and I will be glad to explain further,

Please be kind enough to leave a positive rating so that JustAnswer will give me credit for assisting you, otherwise JustAnswer keeps your entire deposit and the expert receives none.

Kindest Regards,

ANDREA

Customer: replied 1 year ago.
I have old prescription that were given to me and have access to others at home such as the benzo that I took one night before. That I don't have a rx for. What will happen Then
Expert:  Andrea, Esq. replied 1 year ago.

Thank you for your follow up question. It is difficult to say what will happen next because it depends on what your employer’s policy is in these circumstances. But, your best bet would be that if your employer questions you, then show him the prescriptions you have for the drugs that shows up in your tests because your employer cannot fire you for any drugs found in your tests for which you have a prescription, no matter how strong the drug is.

Please be kind enough to leave a positive rating so that JustAnswer will give me credit for assisting you, otherwise JustAnswer keeps your entire deposit and the expert receives none.

Kindest Regards,

ANDREA