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Dwayne B.
Dwayne B., Lawyer
Category: Employment Law
Satisfied Customers: 33385
Experience:  Employment Law Expert
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I wanted to see if you would be able to give us some legal advise r

Customer Question

Hi i wanted to see if you would be able to give us some legal advise regarding this matter.....My husband had a random hair folical test request by his employer so they sent him to Disa. Disa did a hair folical test and it came back positive which was a huge shocker to him since he knows he doesn't use any type of drugs. He was really upset because his employer said they could not work him till he clears up this matter. So he went and took another hair folical test and today he received his results and he tested negative. He called his employer and let know but they will not work him till disa clears this error. What can he do? He has took hair folical test for 9 years and has never had a positive test. How can it be possible if both test were hair folical test and they were 3 days apart from each other one is positive and the other negative? I really think there is a mistake and we do not know what step to take after this. Also two Co workers from the same company tested positive
Submitted: 2 years ago.
Category: Employment Law
Expert:  P. Simmons replied 2 years ago.
Hi, My name is Philip. I am an attorney with over 16 years experience. Hopefully I can help you with your legal question.
I agree with you...it sounds like an error in the testing process. But not sure I understand your question. Are you asking if the employer can refuse to take him back based on this?
Customer: replied 2 years ago.

No not the employer. We want to get this matter cleared up with disa so he will not have a positive test on his record. That positive test will affect him working in certain plants.

Expert:  P. Simmons replied 2 years ago.
Thanks...I will opt out and allow others to assist you.
Expert:  Dwayne B. replied 2 years ago.
I see the other expert opted out so I will see if I can assist.
What is DISA?
Customer: replied 2 years ago.

Disa is a facility where the employer's sent there employees to get drug tested.

Customer: replied 2 years ago.

I'm sorry but I'm wondering why the $38 was deducted from my account if no one has been able to help me with what I asked?? I don't think that's right. I came on here because i thought someone would be able to give us legal advise but today makes it two days and i have not yet received any legal advice.

Expert:  Dwayne B. replied 2 years ago.
We actually don't give legal advice, as the website click throughs explain, we provide information on legal topics.
As to the money, the experts really aren't involved in that part but it is my understanding that there is actually just a hold placed on the funds, it isn't actually charged until you issue your rating.
Did you want me to continue assisting you?
Customer: replied 2 years ago.

Okay so can anyone help me get an explanation on this legal topic that i asked help with? Do you know how much longer It will take before someone can actually answer my question or can help me understand what can be done about the situation. My husband talked to Disa and they were willing to re-take the hair folical test again but with the same hair they tested the first time. Is that possible to do?

Expert:  Dwayne B. replied 2 years ago.
Unfortunately, there is no way that is guaranteed to clear up this matter quickly.
The first step is to take them up on their offer of retesting their sample and see what that result is. It has been my experience that the drug testing companies don't like to admit they made a mistake and so I wouldn't anticipate they will change their test results but it is always a possibility so it's worth trying. If you want to be extremely cautious then you could hire a local lawyer to write them a letter and advise them that if their test come back positive again that they are going to ask an independent lab to test the same sample and compare it to a fresh sample and determine if the sample they took is contaminated or his actual hair follicle. That isn't required by any means but it will put them on notice that they are "under the microscope" and they may be more careful.
If that doesn't work then the only other option is to file a lawsuit and ask the court for a declaratory judgment finding that their test was incorrect. Unfortunately, that will mean that you have to invest quite a bit in attorney's fees and expert fees. The experts will have to examine the sample that DISA has been testing as well as another sample of your husband's, as well as all of the testing paperwork, and see if they can determine what the problem is. There is no reason other than 1) some type of contamination, 2) they're testing a sample that is not your husband's, or 3) they're not actually testing, for one sample to be testing positive for drugs and another sample taken a few days later to be testing negative.
The samples are normally tested using a gas chromatograph or gas spectography method. However, there have been cases where the technicians don't properly clean or vent the machine between samples and the machine becomes contaminated and gives positive samples thereafter until the machine IS cleaned.
There have also been cases where the technicians don't really do the tests, they just say they do the tests. This doesn't appear to happen as often in private labs as it does in police labs (Harris County for example) but it does happen and is one possible explanation.
Unfortunately, there is no way to know for sure what happened without subpoenaing all of the records for the tests both before and after your husbands as well as the machine information and that can only be done after a lawsuit is filed.