Is this defamation? What can I do to protect myself?

I do drug testing at my job. Recently a client at the treatment facility where I work tested negative, later that day this same client went to court and tested positive for herion, this client also over dosed. This client has court ordered rehab & mandatory drug testing. Once this client came up positive in court. The Justice Center became involved. The investigator stated that he believed the client and that I made "googlie" eyes at the client. The client stated that I let him pass 20 drug screens, I never did this! The investigator stated that he believed I let this man pass 1 but not 20. I told him I didn't let him pass any. I did my job properly. I'm currently under investigation at my job for this and The Justice Center! What can I do to protect myself against these false allegations.

1 answer  |  asked Apr 6, 2016 11:38 AM [EST]  |  applies to New York

Answers (1)

V Jonas Urba
Wow. You need to take the Justice Center very seriously. Their mission is to work with District Attorneys around the state in order to prosecute any mandatory reporter who is alleged to have abused or neglected any person who resides within a facility which receives state funds. You may have read that the Justice Center is under intense scrutiny due to the fact that vulnerable citizens (often the young, elderly, and those under disabilities) continue to receive sub-optimal care, and sometimes even die, in New York State.

Assuming you are a mandatory reporter you need to document what your employer's procedures are for drug testing. Testing facilities sometimes have lax or non-existent security protocols to prevent someone from submitting fake or fraudulent samples for testing.

Hopefully the testing was blood testing and not just urine samples. You will likely have the blood test results since you likely drew this person's blood although chain of custody for testing may be an issue.

However, if the testing was only urine testing, and the substance abuser had a purse your facility should have instructed every tested subject not to bring purses to your facility or to have secured lockers in the waiting area while the subject was being tested. Otherwise how could your facility reasonably expect that persons would not regularly bring fake or fraudulent samples in their purses and swap them in the restrooms? Without cameras in the restrooms and without searching those you test how will you explain the results? Were there 20 clean tests at your facility?

Although possible, it's highly unlikely that either the person was clean in the morning but high in the afternoon or that the second testing facility made an error. If your facility regularly makes errors then you may have to secure as much evidence as you lawfully can that you work for a facility which routinely makes errors in testing. That's risky and not recommended unless you have access to such error rates as a regular part of your job. And if you do then why are you still working there?

If you don't retain legal counsel and the allegation or allegations are substantiated, depending on the level, you could be placed on a list which prevents you from directly working with vulnerable. For many people this means finding a new career path.

What you can do to protect yourself is to retain legal counsel. Defense is a substantial amount of work. It can take longer than a year from the initial appeal to a hearing date. A recent one had almost 500 pages of exhibits, 8 witnesses, and lasted 7 hours with no lunch and two, five minute bathroom breaks. Take this very seriously, especially if you are state certified or licensed or plan to be.

posted by V Jonas Urba  |  Apr 6, 2016 6:45 PM [EST]

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