Should you Sue?

You may find yourself facing termination if you return a positive result to a drug test and are unable to claim that you have a disability such as a drug addiction. If you do face termination, then you will need the help of your union or your lawyer. It is much easier to prevent termination than to try to get reinstated.

When a lawsuit is brought against an employer it will generally be for wrongful discharge, causing mental stress, and maybe also defamation or slander where the employer has not failed to respect the privacy of your medical records. It can be very difficult to establish that these grounds for legal action exist.

It is very difficult to win a wrongful discharge case. The attorney responsible for publishing "Criminal Law Monthly, Patrick Bishop has said that a good lawyer will be able to persuade the judge that the employer has to disclose all documentation that relates to the results of the test. This level of disclosure will then give the lawyer a greater chance to conduct sufficient research to find a possible violation of standards in relation to the collection or testing of the sample. They may also be able to find another type of flaw with the testing. Edward Chen from the Northern California American Civil Liberties Union has co-authored an article with John True from the San Francisco Employment Law Center title "Recent Developments in Employee Drug testing". This article covers innovative defenses that have been used based on torts and common law.

Advantages and Disadvantages of Suing

The decision to sue for damages or reinstatement is something that you will need to think about. You will normally find it easier to find a lawyer when the case involves a demand for monetary compensation as opposed to demanding reinstatement and back pay. This is because you will be able to use the damages to pay for the lawyer.

In some cases, the legal challenge has taken many years but the employee has ultimately been successful. One example of this was Luck v Southern Pacific Transportation Company. In this case a jury in San Francisco ruled that the employee was entitled to $485.042 in damages. She had been fired from a position as a computer programmer with the Southern Pacific Railroad for the reason of refusing a urinalysis. In the case of Patchogue-Medford Congress of Teachers v The Board of Education the New York Supreme Court held that compulsory drug tests for teachers in public schools is unconstitutional. In Railroad Executives Association v Burnley, the Federal Court in San Francisco ruled that a train operator could not be drug tested based solely on the fact that he or she was involved in an accident. The employer would have to prove that they had a "particular suspicion" that drugs or alcohol were involved.

Suing Stress

Suing your employer can create a range of repercussions spreading beyond your employment situation. You may find yourself a victim of stigma, which may also affect your family, if your friends and people in your neighborhood find out about the case as this may lead them to suspect that you take drugs.

The legal process itself is also very stressful and expensive. The employer's lawyer will try their best to prove that you are a drug addict before the court. They may go so far as to hire private investigators to pry into your past and personal life. They may bring up instances of drug use from your college years that you will be forced to explain and defend.

Ask for Rehabilitation

Rather than challenging the tests in court, you could negotiate with your employer and request the opportunity to go to rehabilitation. This could appear a little obnoxious, particularly if you don't actually believe that you are disabled, but it will afford you additional protection by making the American Disabilities Act available to you. And seriously, if you lose your job then what will you do? What reason can you give new employers for leaving your last job? This is not the best situation, but it could be a useful loophole.

After you have claimed that you have a drug addiction, then it is less likely that your employer will terminate your contract or discipline you in any other way. Despite the fact that the term "disability" technically only applies to past and not current drug use (current drug use is what will be found using a drug test and this is regarded as illegal and not classified as a disability), this distinction is often blurred and employers will be extra cautious not to violate the ADA because it has high penalties. If you claim to have a drug addiction, then your employer is obliged to give you the chance to undergo rehabilitation and they will refer you to an approved treatment program (for example, drug therapy or counseling). If you don't take your recovery seriously and fail to cooperate with the rehabilitation program, then you could face disciplinary action or have your employment terminated.

Another option could be to argue that you only use drugs casually, you're not addicted and you will not do it again. To further demonstrate that you are committed to doing this, you can ask that you be tested on a regular bases to prove that you are abstaining. This is more likely to succeed if you tested positive for marijuana and you live in a region that has a more relaxed attitude to this drug. This approach however, may mean that you need to be tested more often which will require abstinence.

Unemployment Benefits

It is virtually impossible to collect unemployment benefits if your employment contract has been terminated as a result of a positive drug test or refusing to provide a sample for a drug test. The regulations governing this vary on a state by state basis. In California, it has been ruled by the California Unemployment Appeals Board that people who have been fired from a hazardous job for refusing to take part in a drug test and therefore creating a reasonable suspicion that they are using drugs, will not be able to claim unemployment benefits. The opposite ruling occurred in Oregon where an Appellate Court held that an employee who tested positive for drugs and was therefore fired, could claim unemployment benefits because the employment was not necessarily terminated as a result of work-related conduct. The trend is moving towards becoming more restrictive. Four states (Mississippi, Tennessee, Colorado and Virginia) passed laws in 1998 that restricted entitlements to unemployment benefits. It is a good idea to look into the unemployment benefit regulations in your state before you refuse to take part in a drug test, or if you are concerned that you will test positive.

Advance Preparation

The best approach is to prepare for drug testing in advance. Do anything you reasonably can to ensure that you don't test positive. The best option for ensuring this is to abstain from all types of drugs (including prescription and over-the-counter medications and alcohol) before you take the test. Of course, if you have a serious health concern then you should not stop taking important medications due to the impending drug test. You may want to speak to a physician about the effect of taking prescription drugs. You can also find extra information about passing drug tests on