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Can I be legally terminated for testing positive for prescription meds after a return to duty DOT test, even after prior notice?

Yosemite National Park, CA |

Many DOT TITLE 49 PART 40 regs were violated by my employer when I was terminated after testing positive for prescription pain meds on a return-to-duty drug test despite having a written note from my supervisor stating I notified him I was using the drug prior to being told to test. The MRO reversed the positive to negative after interviewing me, my workers comp doctor, and receiving a copy of the prescription. My employer cancelled my workers comp daily benefits when I was terminated, as well as my medical and life insurance, and did not notify me when they received the negative result until 4 months later. I think I have a strong case for damages, backpay and benefits. Any takers?

Attorney Answers 2

Posted

The facts you provide are too slim to make an intake decision on at this time. There are some prescription drugs that could disqualify you from driving yet still allow for a clean test if prescribed. Much more would need to be known I note on another post regarding this same issue you mentioned you are in a union. Start there. If you get no satisfaction and you believe you have rights beyond there, I am sure there are several attorneys who might be willing to look at your matter.

By the way, among attorneys, any potential client who insists they have a great case at the outset are generally potential clients of which to be cautious. If you want quality representation let the attorney decide if it is a strong case or not.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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Posted

I can give you all the details you want but what I have already provided seems worth looking into. It.s funny that a potential client should not offer an opinion about a great case potential since the opposite might be suspected by an attorney. I was also told by an SAP during the interview that my denial of being an addict is typical of addicts who are in denial. Then when I was asked by a rehab center how long it had been since I used the drug that tested positive--prescription morphine after surgery--my truthful answer was one month. They said they could not take me then because a month was enough time to have detoxed. My employer said I had to follow the SAP.s (union provided) advice of 6 months detox and inpataint to get my job back. The insurance company said they would not pay because I did not have and addiction anymore and therefore no medical condition/, If I lied and said I still had a problem or started taking morphine again maybe I could get insurance to pay and be accepted to rehab to get my job back, but I have a policy of always being truthful so I'm kinda in a Catch 22.a. I have since taken another DOT return to duty test and passed as well as being released to work by workers comp and still have not been put back to work after a month. What more can I do? I offerred to be tested everyday before duty even. I think I should just take a leave of absence from work to write a screenplay about all this. Here's more irony--I was working toward a masters degree to become a substance abuse professional when this started a year and a half ago. I still think I have a great case, especially for a screenplay.

Neil Pedersen

Neil Pedersen

Posted

Here is the problem. As long as the drug test was done by a medical provider who made the process as unintrusive as reasonably possible and the test results were kept appropriately confidential, you have little to legally complain about regarding the testing. And an employer is allowed to terminate or suspend an employee for any reason or no reason as long as it is not an unlawful reason, meaning the action was motivated by discriminatory or retaliatory attitudes. Employers are allowed to make decisions based on faulty information, false information or on grossly inaccurate tests. The exception to these rules may lie in your union collective bargaining agreement. That is why I have recommended you turn to your union rep as soon as possible. Again, good luck to you.

Asker

Posted

The drug test was done perfectly with the MRO changing the positive to negative--this is the crux. Once the negative result was given to my employer dated 5/9/11 they are mandated to return me to work immediately under DOT regs. I was not even notified of the negative result until august 16, 2011. Not only was there an unlawful termination without just cause (I should have been stood down pending the MRO INVESTIGATION--NOT FIRED. This is clearly stated in DOT TITLE 49 PART 40 The problem I have with my union is that I am filing a complaint against them and their SAP. I doubt they would help me with this complaint against themselves. I work in a National Park for a private contractor where federal DOT law supersedes any union contract, which was violated as well. I passed another RTD DOT drug test a month ago and am physically able to work so I think enough DOT lawas have been violated to raise a major backpay recovery issue.

Christine C McCall

Christine C McCall

Posted

Your needs vastly exceed what can be effectively accomplished in this format. Go and talk with an attorney, but do it soon. If you are wrong about not being required to first work through your union, critical short time limits may be running.

Asker

Posted

I thought I was talking to an attorney? Are you a poser? This case is so simple that my employer failed to communicate not only with me but within their own HR dept. I now know why I was fired, which was for something the union rep told the DER--that I refused rehab. The union rep had no legal authority to make a determination that I refused rehab. I told him simply that I did not need rehab, but that if an SAP made me go to rehab as a condition of getting my job back I would go since I was also working on a masters degree online to become an SAP and would finally have a great thesis topic--how the DOT drug regs could be violated by an employer, DER, union, and SAP can make mistakes. The final result of this case and conclusion of the thesis will be whether or not these foplks will admit they made mistakes and will they be help liable for damages. I was a union shop steward for nine years and am tempted to buy the book Litigation For Dummies and Fools and represent myself, but I hear there are a lot of attorneys who need work and I would like to help the economy quick so Obama will have a better chance for re-election. I would use my uncle who is a retired labor law attorney but that would be reverse nepotism.

Posted

As I mentioned to you in my other response, if you have a disability under California's Fair Employment and Housing Act ("FEHA") that requires you to take the pain medications, you may have some different avenues open to you. Even if you are a driver, and the pain medications preclude you from driving, if you have a disability the employer may have to engage in a good faith, interactive process to see if there is some other job that you can do. Whether you follow up with your union or a private attorney, bear in mind your statutes of limitations. In other words, if you wait too long to pursue a lawsuit, your right to do so may be lost forever.

I do agree with Mr. Pederson: people telling me what a great lawsuit they have immediately sets up a red flag for me. I worry that someone telling me that may be too emotionally invested in their own case, and won't easily listen to what I have to tell them.

Good luck with your legal matter.

Sincerely,
Craig T. Byrnes
www.ctblawfirm.com

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

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Posted

I'm encouraged that you think an attorney might be interested in getting more facts, as I have plenty along with the union contract article that was violated and numerous DOT REGS. I got my job back and start tomorrow but still believe there was an unlawful discharge as well as malfeasance by HR and the SAP. I experienced great financial, emotional, and spiritual distress. Not that it matters to a jury, but my employer is a huge privately owned company with deep pockets and recently lost two unlawful discharge cases where major backpay was awarded. One would think my company would coach their Human Resouce people better after all that. I'm sorry for being optimistic, but I still believe I have a strong case. I feel I could represent myself, but that might be foolish and deprive some struggling attorney some easy money.

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