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I live in Utah and have been dealing with a lot of medical…

I live in Utah...

I live in Utah and have been dealing with a lot of medical problems over the last 6 months (approx). My boss (an owner of the company) knows about these problems and seemed to be working with me to be flexible to accommodate these problems. My job performance had gone done some but to be expected. I was recently called in without notice to talk about how we can get things back on track. I was also told there was someone waiting to give me a drug test. I told my boss I didn't want to take the test because I might not pass it due to a few bad decisions recently, but I was willing to get counseling/help or whatever I needed to do to correct the situation. He said it was good I told him before. He called an HR lady in and told her what I had said. She also said it was good I told them before, because she put it down as I was coming to them for help. They still had me take the drug test. I wasn't allowed to work or communicate directly with my boss while waiting for the results. I was tested on a Tuesday, called in the following Monday to discuss the results and was told I was being terminated due to a no-tolerance drug policy. This doesn't seem right where I told them before and what they had said to me then. I have worked for this company for 6.5 years and always had glowing reviews. I feel like they shouldn't have continued with the drug test but rather moved forward with getting me help.

Lawyer's Assistant: Have you discussed the drug test with a manager or HR? Or with a lawyer?

My boss (an owner) and a lady from HR just told me I was being terminated for not passing the test. I have not discussed with a lawyer yet.

Lawyer's Assistant: Are you an "at will" employee? Do you belong to a union?

Yes, I am an "at will" employee but do not belong to a union.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I don't believe so other than there might be some separate discrimination issues I want to look into, but that can be talked about separate.

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Answered in 3 hours by:
4/23/2018
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,632
Experience: Employment/Labor Law Litigation
Verified

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.

Unfortunately, it is legal to terminate someone one based on a failed drug test. That is true even after you made some admission so the employer. The drug test was set up as a suspicion based test before you made any admissions to the employer, because they already has someone waiting there.

So, that intention isn't undone by your admission. I wish I could tell you differently here, but that is what the law allows.

Even if you have some other discrimination issues to try and raise, you failed a drug test. That can be considered an "intervening cause" for the termination, which gives a legitimate and non-discriminatory basis for the termination the employer can point to.

If you have any further questions or other facts that you would like me to consider, 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 three, a four or preferably a five star 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. Please DON’T rate my service until after you have asked any follow up questions that you have, so that I have the best opportunity to earn all 5 stars. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Customer reply replied 3 months ago
Hi Allen.I appreciate your response and apologize for being slow following up. My only question related to this is why both my boss and then the lady from HR would say to me that it was good I told them before taking the test, and that way they could put it down as I was going to them for help? Those are almost the exact words from the HR lady. After my boss called her in his office to update her regarding what I had just told him (that I might not pass the test), she said "that's great you told us now, because I can put it down as you coming to us for help."I can't see how that helped me in any way now. Utah is an at will state, so they didn't even need the drug drug test to let me go. I just don't like the fact they implied coming clean before the test was going to be of benefit to me - they'd help me get help vs. firing me. Also, it's a family-owned company (my boss is one of those family members), and I have a hard time believing they'd fire someone who went to them and told them they had a drug/drinking problem and needed help. That's what I was told regarding drugs though - they have a no-tolerance policy, and as much as my boss didn't want to let me go, he couldn't expect everyone else in the company to follow that rule if he didn't. However, I can't see in our employee handbook anywhere that says there is a no-tolerance policy. It says:"Employees who test positive for the prohibited use of alcohol or drugs, or who refuse to participate in drug tests, will be subject to disciplinary action, up to and including termination."I read that as there could be other disciplinary action but also termination. Am I reading/understanding that wrong?These are my last questions related to this topic, so I'll go ahead and rate you after I receive your follow-up response.

I don't exactly know why they said that, because I can't ask them. There is no legally mandated reason for them to say it.

Certainly, when an employer chooses to keep someone, and they always have that right, it is because the person was honest upfront. However, being honest upfront doesn't legally compel the employer to keep you. That's all I can address....what the law can MAKE them do.

I understand that you don't like their implication, but legally that doesn't help here. I can see and understand that you are struggling with the unfairness of this. I have no vested interest in telling you that you have no legal claim here. It would actually be in my best interest to tell you otherwise, and yet I am not. I am not because I choose to respect you enough to be honest with you and hope that you appreciate that, rather than candy coating a lie to you which would cause you to spend $1000's on a local dishonest attorney who will tell you what you want to hear as long as your check clears.

The employer doesn't need a zero tolerance policy. They wouldn't need a policy at all, but the one you indicate there is more than sufficient to show that the employer has a policy that indicates they will terminate based on drugs.

Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,632
Experience: Employment/Labor Law Litigation
Verified
Allen M., Esq. and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 3 months ago
I am struggling with certain things that I've addressed, but the bot***** *****ne is I messed up, and I take accountability for that. I'm mostly trying to understand the things that don't quite line up for me. They said I can be rehired after 6 months, and if I decide to do that, I want to make sure I don't hold any animosity for the way things were handled.Thank you for telling me as it is and not sugar-coating things - just what I wanted. Thanks again.
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