What to do if you test Positive?
If your drug test result comes back positive you will first be contacted by your company's Medical Review Officer (MRO). He or she will request that you attend an interview where you will be entitled to explain what may have caused the result. This could involve your legitimate use of an over-the-counter or prescription medication. The Federal Mandatory Guidelines provides that the MRO has to conduct this interview before they inform your employer of the positive result. The interview will also involve reviewing the Custody and Control Form (CCF) in order to ensure that it is accurate and complete.
If the CCF is complete and correct with no additional notes of problems made by the lab or the collector, and you cannot give the MRO a legitimate medical explanation for the positive test result, then the "positive" initial result is confirmed and sent to your employer.
If, in your interview, you do provide the MRO with a valid alternative medical explanation for the result (such as using a prescription medication that creates a positive result in the given drug test), then the MRO can verify that the result should be "negative" and this will be sent to your company. Using medical marijuana will not be regarded as an acceptable reason, even if you have a prescription to do so. The National Drug Control Strategy of 1998 states that "there is no legitimate medical explanation for a safe-sensitive worker testing positive for marijuana in the DOT or any other Federally-mandated drug-testing program".
If you refuse to attend the interview with your MRO, or the MRO can't locate you, then in most cases the MRO would generally verify the positive result. The MRO will need to keep notes of all their attempts to find or contact you on file. If this happens to you, your lawyer can request documented proof that the MRO attempted to meet with you.
If, when applying for a job, you are informed that the results of a drug test as part of your application were positive, you are entitled to request a retest or a confirmation of the initial test results. The company is not obligated to comply with this request and your rights are diminished until you actually start working. Some companies will refuse to conduct a retest and instead will say that you should just wait for 6 months and then apply for the position again. The problem with demanding the sample be tested again is that it will become a big deal and more people will probably find out about it and this may damage your reputation. Waiting for 6 months or so could be your best option, particularly if you actually have used recreational drugs. By this time, the company will probably have got rid of the positive record and your initial application. Another option is to stop using drugs and to apply for different jobs.
If you are employed already and you are tested in response to a workplace accident or randomly, then your employer must conduct a confirmation test for a positive result if you ask them to.
A confirmatory test is a second test that is conducted on a urine sample that initially returned a positive result. The confirmatory test is generally more accurate than the initial test and is able to identify the specific drugs that are found in the sample. The confirmatory tests have to be a different testing method from the screening test.
The two main confirmatory methods are gas chromatography / mass spectrometry (GC/MS) and gas chromatography (GC). Both of these tests use special equipment, a highly trained technician and a special lab. These factors make them more expensive.
Request a Retest
Companies have a legal obligation to offer employees (not job applicants) the chance to have their urine samples re-tested if they initially returned a positive result. Normally the initial urine sample will be split and then the half that was set aside will be used when conducting the second test. Splitting the sample means that it is divided into two equal halves so that two separate tests are possible. If this occurs, then the lab must keep the two samples frozen for a period of one year. This will usually be enough time to enable any retesting to take place. Timing can be extended when ongoing litigation or arbitration is involved.
The MRO is obliged to let you know of your rights to ask that the second half of the split sample by tested. If you want this to happen then you must make the request to the MRO. Current employees will generally be entitled to up to 72 hours in which to make the request that the positive sample be retesting.
What To Do
The first thing to do is to find out whether or not your original urine sample was split. If it wasn't, then you will need to provide a new sample. If the original sample was split, then you should ask whether or not the untested half has been frozen. Any samples that aren't frozen may have deteriorated. If you believe that your positive test result was caused by taking drugs, then the deterioration of your split sample may actually be to your benefit because it may produce a false negative result. However, this cannot be guaranteed. It is a gamble. Another option is to insist that, because the unfrozen sample has deteriorated, you should provide a new sample for the purpose of the confirmatory test. This will then give you the chance to abstain or flush out your system before giving the new urine sample.
It is a good idea to demand a second test depending on the most appropriate procedures that you have available to you. Doing this buys you time and there is always the possibility that the second test result will be negative. This would then create doubts about the first positive result and be in line with your argument that you are innocent. Additionally, you may arouse suspicion if you don't ask for a second test while you're claiming innocence.
Under the Federal Guidelines, the MRO is required to change a positive drug test result to negative if you can demonstrate a legitimate medical reason for the result, such as taking prescribed medications. Your MRO may wish to discuss the medication with the doctor that made the prescription in order to confirm whether or not it would impact upon your job performance. The American Disabilities Act (ADA) limits the questions that the MRO is permitted to ask and the way that information can be used, provided that the employee involved has a medical condition.
Positive Results due to Prescription Medications
If you don't have a prescription, then prescribed medications are treated in the same way as illegal drug. However, if you do have a prescription then the ADA prohibits employers from disciplining you for taking these drugs. You are doing nothing wrong by taking the drugs that have been prescribed for you. The only possible problem may have been that you didn't let your employer know about your medical condition. However, in the majority of situations, you do not have any obligation to tell your company when you are taking prescribed medications. This is personal information.
You can only be disciplined by your company for taking prescribed medications if your company has a policy the specifically required use of these drugs to be disclosed. However, having a policy like this could be unlawful according to the terms of the ADA. If you have any questions about this, you should discuss it with a lawyer. You could possibly get a lawyer on contingency because breaching the ADA involves large monetary fines.
Employers are not allowed to pry into the prescribed medications that you are taking in order to reveal any medical conditions. This is against the law and you will probably be able to sue if this happens to you.
The ADA has totally confused the drug testing process. One example of this is the fact that job applicants can be tested for drugs but not for alcohol. The reason behind this is that alcoholism is classified by the act as a disability which therefore makes an alcohol test a medical examination. It is prohibited to make job applicants with a disability undergo a medical examination. The really strange thing is that drug addiction is only classified as a disability under the ADA if the person is in a rehabilitation program or has already completed such as program. Employers cannot ask questions about a disability while conducting a job interview. They can't ask if you have a history of drug use of whether or not you are a drug addict. They can however, ask if you are currently using drugs because this is an illegal activity, while asking about your past is prying into a potential disability.
People with a disability cannot be singled out to be drug tested. It is OK for a company to drug test someone with a disability, as long as they are treated in the same way as other, non-disabled employees. If you took part in drug rehabilitation in the past then you will be classified as disabled, but the company cannot use this information when deciding whether or not to hire you. They cannot ask job applicants about their possible disabilities at all, and this includes a history of drug addiction. Alternatively, the company can ask job applicants if they are currently using illegal drugs. This topic is open for discussion. As you can see, the ADA has created a confusing and contradictory environment with several possibly loopholes available when a drug test comes back positive and the job applicant can argue that they are disabled because of a drug addiction past.
It is important that you insist that your drug test results are treated confidentially. No one should have access to your test results during the period where you are trying to resolve the matter and have a positive test result overturned and cleared from you records. You may want to ask your lawyer to formally request confidentiality in writing, or you could do this yourself, or ask your union to assist. You should send these formal documents using certified mail or some other method with documented proof of receipt.
Most states will protect the individual's medical records using the legal right to privacy. This required employers to ensure that employee's medical records are kept confidential. Where these state laws exist, it would be considered an infringement of the law to reveal someone's drug test results to another person. Despite these laws, you should not presume that confidentiality will be automatically respected.
Keep a Paper Trail
You should always keep copies of documents relating to your drug tests. Take notes of any relevant conversations that you have with supervisors or other representatives of the company. Make sure that your notes include details such as time, names and places and then file these somewhere secure. You should also ask that any official reports or requests made by your company are provided in writing.
The whistle-blowing laws make it an offence for anyone to be fired because they challenged the results of a drug test. This doesn't necessarily mean that it won't happen. Keeping a detailed paper trail will help you to reconstruct the relevant events if you need to take legal action to fight disciplinary measures, such as being fired.