If an employer or a prospective employer in North Carolina has asked you to take a drug test, you’ll want to know your legal rights. Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit drug tests. For the most part, state and local laws determine whether a private employer may require drug testing.
North Carolina allows employers to require applicants and employees to take drug tests, as long as the employer follows state procedures. Employers are not required to drug test.
Drug Testing for North Carolina Applicants
Employers in North Carolina may require applicants to take a drug test as a condition of employment. Unless the applicant signs a written waiver, a positive test must be confirmed at an approved laboratory.
Applicants have the right to retest a confirmed positive sample at their own expense, at the same lab that confirmed the sample or at another approved lab of their choosing.
Drug Testing for North Carolina Employees
North Carolina employers may require employees to take drug tests. There are no restrictions on the circumstances in which an employer may require a drug test.
Testing must be performed under reasonable and sanitary conditions, and “individual dignity” must be respected to the extent possible. Drug tests must be performed by an approved laboratory. Employees have the right to retest a confirmed positive sample at their own expense, at the same lab that confirmed the sample or at another approved lab of their choice.
Legal Claims Arising From Drug Testing
Even though North Carolina law allows employers to drug test, employees and applicants may have legal claims based on how the test was conducted, who was tested, or how the results were used. Here are some examples:
- Violation of state laws and procedures. Although an employer has the legal right to test, it must follow the state’s requirements. For example, a North Carolina employee who was fired on the basis of an on-site drug screen rather than a test performed by an approved laboratory might have a valid legal claim.
- Disability discrimination. The Americans with Disabilities Act (ADA) protects an applicant or employee who is taking medication for a disability. Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant's medication was legally prescribed for a disability, the company could be liable.
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender – for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that is allowed or required to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes that the employee tested positive, the test result was false, and the employer knew or had reason to know of the error.