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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18790
Experience:  Employment/Labor Law Litigation
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We have random drug testing at my work, and in the employee

Customer Question

We have random drug testing at my work, and in the employee handbook it says that you must come forward with having a problem BEFORE testing positive (emphasis theirs). My question is does this leave you off the hook if you cannot pass? It doesn't say before they summon you for testing, just before you actually test positive. Furthermore, is this their way of knowing that smokers can be good employees and trying to provide a potential loophole?
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: Illinois
JA: Are we your first resource? And has anything been filed in court?
Customer: Yes. No court.
JA: Anything else you want the lawyer to know before I connect you?
Customer: No. I just want want to know the regulations and potential loopholes involved with random testing.
Submitted: 2 months ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 2 months ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

Legally, it doesn't take you off the hook at all. Nothing in the ADA requires that an employer accept and not terminate in a situation where a person has a positive drug test.

The point of their company policy is that if you were to voluntarily come forward before you believe you are going to get caught and ask the employer for the opportunity go to drug counseling/rehabilitation, then legally you'd be protected from discrimination for going to rehab. However, if you test positive and THEN ask the employer for time off to go to rehab, it's too late then. You didn't come forward due to the desire to go to rehab, but rather, because you knew you'd be failing a test.

No, I do not believe the employer here is intending this as a loophole for smokers. In terms of loop holes, everyone always asks about that but really they don't exist. I think people get the idea from television or from what they'd heard from friends, but law isn't as hyper-technical as people have been led to believe. Random drug testing is highly unregulated, the opposite of what you'd expect.

If you know you will be testing positive, then I certainly think that you would be in stronger position by going forward before they come to you. You can even raise the issue of their policy wording. That may give them pause and cause them to extend to you a second chance. However, if they choose not to, their policy wouldn't give you any means of suing them for wrongful termination.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

Expert:  Allen M., Esq. replied 2 months ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.

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