If your employer or prospective employer in South 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, this area is regulated by state and local laws.
Like a number of other states, South Carolina has a drug-free workplace program regulating drug testing. Employers who establish such a program can qualify for a discount on their workers’ compensation insurance premiums. However, employers must follow the state’s rules to get their discount. South Carolina requires employers in this program to drug test.
Rules for Job Applicants in South Carolina
South Carolina law doesn’t restrict or prohibit applicant drug testing. Employers don’t have to implement applicant testing to qualify as a drug-free workplace.
Rules for Employees in South Carolina
To qualify as a drug-free workplace for workers’ compensation purposes, a South Carolina employer must conduct random drug testing among all employees. The employer must conduct a follow-up test within 30 minutes of the initial test. The employee must be notified within 24 hours of a positive test result.
Legal Claims Arising From Drug Testing
Even though South 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:
- Disability discrimination. An applicant or employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). 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, depending on the circumstances.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes that the employee tested positive, if the employer knew or clearly should have known that the test result was in error, and the employer acted maliciously.