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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 118722
Experience:  20+ Years of Employment Law Experience
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Here are all the relevant facts: I have been in my industry

Customer Question

Here are all the relevant facts: I have been in my industry for 16 years, and with my current employer for 5.5 years. I am the top overall Cisco Engineer, as I can work with and design in all silos. I have always gotten excellent reviews, and have never had a negative verbal or written counseling. Over the past 3-4 years, the company will conduct random drug tests. I've never failed a drug test, and has never been a concern for me until recently.
I valued my job immensely, and took pride in my work and designs. I also value my character. With that in mind, and due to many reasons including my own poor judgement, I was becoming concerned about possibly developing an issue with substance abuse. I decided to research and find a good outpatient program to nip this in the bud.
In the spirit of honesty and loyalty, I decided to self disclose to my HR representative that I had possibly developed and issue, but had also devised a way to work on it. This information was divulged purely in the interest of being the best employee I could. Without me asking, the HR manager said that this would remain confidential. This was one week ago, (April 29, 2016).
At the end of the day today (May 6, 2016), I heard from one of my peers on my Cisco team and also the team leader, that an email had been sent out from HR stating that I no longer work for "blank". All email and other network access has been disabled. I have not heard from my manager, or from anyone in HR. But apparently I no longer have a job, based on.......a conversation. No failed drug test. Furthermore, the official drug testing policy does not state firing until after 3rd offense (below). I'd sure love some advice!
December 7, 2015
"blank" Employees:
Starting tomorrow through Wednesday, December 7-8, 2015, drug testing agents will be conducting a company-wide drug test for a randomly selected group of "blank" employees. Approximately half of the Company will be selected for testing.
Please read this email carefully to understand the process. We have included (below) the Company’s drug policy, as written in your Company Handbook.
• If you are selected, HR will contact you directly with instructions and your testing time. Testing will occur upstairs by the HR area from 9:00am to 4:30 pm, Tuesday and Wednesday. In order to expedite the testing, please do not use the restrooms designated for testing, unless you are being tested.
• Sample results will only be shared with after they are processed in the lab and only if the agency contacts you first with a Positive result. The agency will only call you if your results show a discrepancy. If your sample is Negative, for example, the agency will not call you. Lab tests should be completed by middle of next week.
• If your sample shows an initial discrepancy on site, it will be flagged, although this does not necessarily mean you are in violation of our drug policy. There can be a number of reasons for this flag, including a False Positive. If, for example, you are under a Doctor’s care for a valid medical condition and are taking a controlled substance or narcotic that was detected in the testing, you will need to provide a current prescription written specifically to you by an MD. If you fall into this category, the Agent will clear the flag and your results will be reported as a Negative with no action required.
If the test remains a Positive result, HR will follow up with you regarding these next steps:
1. We will schedule a retest after 35 days. Your employment status does not change during these 35 days and the results are confidential during this retest period.
2. If your results are reported as a Negative on this second test, you are cleared and no further action is necessary.
3. If your results are Positive, you will begin a 30 day no-pay suspension period and agree to be tested again in 30 days for a final test, at your expense.
4. You will be reinstated after your 30 day suspension with a clear test. Any other result may result in your termination.
The primary reason the Company performs these tests is because many of our customers require us to do have an active drug testing program. Therefore, adherence to this policy is critical.
The benefits of maintaining a drug-free environment are well known and evident by the sheer number of companies that make this a common practice in today’s workplace.
The goal ultimately is to redirect and correct violations in order achieve mutual success.
Thank you for your cooperation.
Director of Human Resources | DID | Ext. xxxx
Submitted: 1 year ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
According to the EEOC and the courts, “Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.”
This means that if your employer is discriminating against you now based on the fact you are seeking treatment for a substance abuse problem they are violating the Americans with Disabilities Act. So you need to send your employer a written notice that cutting off your internet/email access and constructively terminating your employment and denying you leave as provided for under the Family and Medical Leave as well as the ADA for treatment is discriminatory under the ADA and if they do not reinstate you immediately you will file a complaint to the EEOC and pursue legal action.
The fact that their drug policy provides accommodation and does not call for termination as you noted, is your evidence that this conduct towards you now is a violation of your rights under the ADA. If HR does not change what they have done, your next step is to file a complaint to the EEOC and also file an unemployment claim against the employer for "constructive discharge" since they did not tell you flat out you were fired, but cut off all of your ability to work with them.
If the EEOC cannot resolve this, then you would get a right to sue letter and need a local lawyer at that time to sue the employer for violation of ADA and also possibly the FMLA.