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This situation arises when a person is hired pending the results of a pre-employment drug screen, but later fired when the results come back positive. This is almost always a fairly easy case for an employer to win, but documentation is of vital importance! To have the best chance of winning a case like this, be sure to have words like the following on the job application:
...I certify that I do not have any detectable amounts of prohibited substances in my system at the time of taking my pre-employment drug screen. I understand that if my drug screen turns out positive for a prohibited substance, I will not be eligible for hire, or if I am hired pending the outcome of such a test, I will be subject to immediate termination...
In addition to that wording on the job application, be prepared to submit a copy of your company's drug-free workplace policy; a copy of the claimant's acknowledgment of the policy; a copy of the claimant's consent for testing; a copy of the specific drug test results showing what substances were found, in what concentrations or with what cutoff levels, and what tests were performed on the sample, including confirmatory testing by the GC/MS method; and finally, a copy of the chain of custody of the sample showing who handled the sample at all pertinent times.
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