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Can i appeal being fired due to a positive drug test? & also appeal denial of unemployment benefits?

Lakewood, WA |

I left work in an aid car to the Hospital around 9:40pm & the next day was told that its company policy that if an employee leaves work in an aid car its company policy to go have a UA test done. Nothing stating company policy in employee handbook.
I was having effects of dizziness,headache,confusion,,feeling nausea, & pain in chest,which esculated to trouble breathing & loss of consciousness. All of these are side effects from taking Ibuprofen which I have been taking for years ,but once I started to feel dizzy I went to take 8 at once due to my high tolerance to medication,with a small amount of water & layed down on a bench in the lunch room.
My drug test showed + for Marijuana,which can happen from using Ibuprofen.
I haven't done any drugs for over 15 years

I didnt know about side effects or symptoms from Ibuprofen nor the fact that Ibuprofen can cause a positive drug test for Marijuana until after I was informed of the positive results, & started to do several hours of web searching. Also according to MY RIGHTS AND RESPONSIBITIES AS AN EMPLOYEE IN WASHINGTON STATE. Section 6 Unemployment Compensation "Unemployed through no fault of your own" "you’ll qualify for unemployment compensation unless you’re fired for “misconduct.” Misconduct means that a worker acted in willful disregard of the employer’s interest and harmed the employer’s business. To be misconduct, the worker’s act must be intentional, grossly negligent or take place after warning against it. "Mere incompetence or a mistake in judgment isn’t misconduct."

Attorney Answers 3


  1. Unless you have an employment contract or are represented by a union with a collective bargaining agreement in place, your employer is free to terminate you for the results of the drug test, even if the test is wrong, or for any other reason -- or even for no reason. That's the essence of at will employment -- the American employment system in 49 of the 50 states. It doesn't matter that the employee handbook is silent on this issue.

    Of course you should make a timely application for UI benefits, and you should exercise all appeals rights if you are denied.

    You also should talk with a physician about your use of ibuprofen -- you are running some severe risks with your health on these facts.

    By the way, for future reference, don't expect much traction in the employment arena with the assertion that drugs tests for marijuana can show a false positive because of high levels of ibuprofen.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.


  2. There is a recent Supreme Court decision from WA where an employee was using medical MMJ with a prescription (and not at work or anything) but her employer gave her a drug test and she tested positive for THC and the company fired her. Our Supreme Court said that was the company's perogative.

    The twist in your facts is that you say you did not have MMJ in your system, but Ibuprofen. I would strongly recommend that you go find a local attorney - Jay Berenburg comes to mind - who understands mmj issues and find an expert who is prepared to say that high doses of ibuprofen can give a positive result for mmj. Also, the sooner you get another test done to show that you don't have any THC in your system the better.

    Washington is a right to work state, which means, ironically, that you can be discharged at any time for pretty much any reason whatsoever, so long as that reason is not discriminatory. I am not saying you have been discriminated against, because there is nothing in your fact pattern that suggests discrimination. But if you are right, then you were discharged according to a nonexistent "policy" and for something you did not do. You need to lawyer up.

    Hope this helps. Elizabeth Powell

    Using Avvo does not form an attorney client relationship.


  3. My Clients usually do a drug test in this situation, because a non-work condition is a defense to the potential WC claim. You are not being fired for being dizzy at work; you are being fired for failing a post-injury drug test. While using medically prescribed marijuana may not get you arrested, neither does showing up 20 minutes late for work, or taking personal calls at your desk. The point is, nobody had to do anything criminal for you to lose your job. The Employer does not have to justify your positive drug test, and nobody cares if you take 3 grams of Ibuprofen a day. They are just culing the herd of people that they don't care to keep, including you.

    It does not have to be fair. It just has to not be against the law.

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