False positive for non-illegal prescription drugs on a pre-employment urine test.

September 18, 2010 9:55 AM

I just had an offer for my absolute dream job at a large British bank in New York rescinded 2 days before I was to show up for work. I had signed all forms and passed the background check, but I came up as positive on the (gc-ms urine) drug test for - of all things - benzodiazepines. I have never taken a benzodiazepine and am posting anonymously so you know I have zero reason to lie.

First off I was shocked that they would test me for non-illegal pharmaceuticals - I do take ambien a.k.a. zolpidem, but by prescription; ambien is known to be all but in name a benzodiazepine. This was indeed a false positive: just logically, why would I sneak over and buy some make-you-sleepy pills from Frankie the Minimal-Recreational-Value-Prescription-Medication Pusher rather than just get a prescription, especially given that my doctor has given me a prescription for essentially the same thing? But since zolpidem is not technically classified as a benzodiazepine it "wouldn't show up" thus I must have been lying. I was told by their human resources android simply that they have a zero-tolerance policy as well as a no-use-of-intelligent-thought policy about the topic, bye, click. What are my rights (as an American citizen) in this situation?

I've done some research on the topic and there seems to be a substantial number of others online, again with no reason to lie about it, who have been screwed by this exact thing. Zolpidem acts on a strict subset of the GABA receptors that other benzodiazepines (e.g., valium) act on, but is more selective and is molecularly distinct enough that whoever decides these things decided that it was not to be called a benzodiazepine. It only very recently became generic in the USA which is I'd imagine the reason for the dearth of studies on its toxicological similarities with the benzodiazepines, and I'm sure the company that invented it did lots of work to find a molecule that would lie outside that category but act similarly on the brain. Naturally, trying to explain to an h.r. person why non-selective, categorical ms-gc scans have a significant false-positive rate in contrast to tests that look for a specific molecule, is a non-starter. I just want to know if the law gives me any rights at all here - after all it's not just the money and time but my reputation and entire career potentially at stake here, and I feel like I'm living in an insane Kafka novel (though perhaps a bit less terrifying). For instance do I have the right to know what I'm being accused of exactly, i.e., what is it that I've allegedly been taking if not Ambien?

posted by anonymous to work & money (14 answers total)

Could you appeal to a higher power? Perhaps the person who would be your boss if hired? I just don't think you're going to win this with science. Even if it's true.

And I know it's your dream job, but it would really give me pause to have an employer with such a brain dead policy...
posted by meta_eli at 10:00 AM on September 18, 2010

Legally, I'm not sure you have much recourse, but there are plenty of NY lawyers who will offer you a free consultation.
posted by meta_eli at 10:08 AM on September 18, 2010

I'm no expert in UK employment law, but in the US if you're being considered for a position as an at will employee, you don't really have any legal "rights" aside from non-descrimination laws. They could decide not to hire you because you tested positive for eating vanilla ice cream.
posted by craven_morhead at 10:09 AM on September 18, 2010

I know you can't respond, but is it possible you've had some dental work done semi-recently (Erowid says up to 42 days) and the dentist gave you some valium to relax before the procedure? Or you had oral surgery? Or regular surgery? Benzos are pretty commonly used as part of anesthetic cocktails. Good luck!
posted by zachlipton at 10:09 AM on September 18, 2010

Weird that they'd drug test you for a banking job. Weirder still that they'd turn you down based on a positive drug test for a completely legal sleeping pill/anti-anxiety med. It'd be like turning you down for having come up positive for tylenol.

Sounds like a place you'd be better off not working at.
posted by Silentgoldfish at 10:11 AM on September 18, 2010 [2 favorites]

For instance do I have the right to know what I'm being accused of exactly, i.e., what is it that I've allegedly been taking if not Ambien?

Ativan, klonopin and valium are all popular recreational drugs.

I'd just list ambien as a prescription drug when they ask next time. Honestly, at this point in history, I'd just list anything psychoactive that you have a prescription for. 'cause they're probably testing for it, if they're testing for anything at all.

As for this job... you need to talk to your doctor, and you need to take that medical explanation to somebody farther up the corporate foodchain.
posted by Netzapper at 10:11 AM on September 18, 2010

Could you get your doctor to send them a letter. Or you should send them a letter and say that even if they won't reconsider hiring you, they should be aware that their drug testing facility is making mistakes and potentially screening out good candidates.
I might still get a consult with a lawyer.
posted by elpea at 10:12 AM on September 18, 2010

Can you volunteer to supply your medical records, which will include prescribing information for the Ambien, along with a note from your doctor? (I thought this question was going to be "how did I test false positive?" but there's a definite explanation, if you can get someone to listen - you tested positive for something you're legitimately prescribed!)
posted by jocelmeow at 10:15 AM on September 18, 2010

This answer won't do you much good this time around, but it's increasingly clear to me that anyone who has a mandatory drug test for any reason should spring for a certifiable version of the same (ideally) or better test themselves immediately after the mandatory one.

If you'd done that, you'd be in a position to dispute or explain their findings.

As it is, if I'm reading your question correctly, you don't even know whether or not they're lying to you. They could actually be upset about the Ambien but be unwilling to say so because you have a legitimate prescription for it, and they think denying you employment in that circumstance could make them liable.
posted by jamjam at 10:51 AM on September 18, 2010

I'm no expert in UK employment law, but in the US if you're being considered for a position as an at will employee, you don't really have any legal "rights" aside from non-descrimination laws.

Which should cover medical conditions, I would imagine.

Talk to an employment lawyer. I doubt the company will care even if they did make a mistake.
posted by delmoi at 11:08 AM on September 18, 2010

Something sounds strange here; I'm banking and have never heard of a firm rescinding an offer after a single test came back positive. Did they mention a retest? Also you did state all of your prescription and over the counter pharmaceuticals before you took the test, didn't you? There is a form that you've usually got to fill out, detailing such complications.

There is so much that can go wrong with drug tests, false positives are well known. They almost always will explain the problem and ask for a retest. When I was hiring in banking it seemed to be about 20% or so of the applicants needed a second testing. Might have been higher, but we only knew if we doing an urgent hire and asked after our applicant.

And look at this from the firm's perspective: they've incurred non significant costs getting to the point where an offer can be extended. These costs involve, minimally, the search itself, interviewing (decidedly non trivial), background checks, the medical test itself), only the firm knows what else.

Hiring costs a lot of money. They almost always will retest.

Here's what I think: either something internally happened, they lost the headcount, and you aren't getting the true story, or something has gotten lost in the communication regarding your drug test i.e., the chance / requirement to take a retest.

The zero-tolerance thing only arises when they're sure. From what you've said they're not sure.

my reputation and entire career potentially at stake here

Well, the stakes aren't that high are they? Who else will know you've failed a test unless you start publicly stating this? Same for career - a job offer that was rescinded won't count for anything. Not to trivialise your situation - seriously, it sucks - but unless you quit another job to take this one, you're only out interviewing / testing time. Opportunity costs, in other words.

I'm no expert in UK employment law

UK employment law won't apply unless OP is on a UK contract. Seems like he's a US national being hired on a US local contract, fully subject to US employment law.
posted by Mutant at 11:42 AM on September 18, 2010 [1 favorite]

Weird that they'd drug test you for a banking job.

Not weird at all. I had to get a full panel drug test just to INTERN at a bank. Banks take that shit seriously.

Did you talk to the director of HR? To the supervisor of the area that was hiring you? HR drones are not your friend here, but the person who wants you for the job may be willing to go to bat for you when you explain the situation.
posted by Eyebrows McGee at 12:53 PM on September 18, 2010

Speaking as someone who is not at all an employment lawyer, delmoi's idea to cast this as disability discrimination isn't bad at all. If you failed a workplace-irrelevant test because you were physically disabled and taking medication for your condition, it would be blatantly illegal to deny you the job on that basis. It's worth checking whether discrimination based on other prescription drugs is any different.

As I said, I have no idea what I'm talking about on this, but if you want to go the legal route, a free consult with an employment lawyer in your jurisdiction is a great idea. Note that it's worth thinking about how a lawsuit might affect your career prospects, too -- I don't know how large or vindictive a pool of potential employers you have.
posted by jhc at 2:05 PM on September 18, 2010

I am exceedingly confident mutant has it. Especially given the British bank angle. A few of them ramped up too fast and are beginning to lay people off. HR probably views this as a face saving way to screw you. Sucks. It happened to me in the 01 downturn - and they even recruited me out of a client for the gig - which means they has to ask my boss for permission to speak with me. If it is any consolation it was the luckiest thing ever to happen to me career wise.
posted by JPD at 5:21 AM on September 19, 2010