What to do if you are fired for a false positive in a drug test?

UPDATED: Jun 8, 2011

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What to do if you are fired for a false positive in a drug test?

My boyfriend got fired for a town sanitation department after working there for 16 years. In the past he tested posted for having marijuana in his system. He recently was out on workers comp for 6 weeks. When he returned to work they did 3 drug tests in 1 week. The first test was negitive for marijuana, the second test was positive, the third test was negitive. He has not smoked any marijuana but has been taking over the coubter pain meds for his neck and back pain. They fired him today based on the results of the 2nd test which is a false negitive. Does he have any recoarse for getting his job back? is so, how?

Asked on June 8, 2011 under Employment Labor Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Your boyfriend should consult with an employment attorney, but he needs to be prepared that he might not have any recourse or rights. The issue will likely come down to whether 1) there was a union or collective bargaining agreement covering his position; 2) there were any civil service or similar strong rules in place over his position or department; or 3) he personally had some sort of employment agrement. If any of these applied, then he may be able to enforce them; that is, he could only be fired for the correct grounds, following the correct procedures outlined in the rules or agreement(s), and if those rules or terms were violated, he may be able to get his job back.

But if he did not have one or more of these things in place protecting him, then he was probably an "employee at will," and an "employee at will" may be fired at any time, for any reason--even a reasoon that turns out to have been factually mistaken.

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