Drug Testing Laws In North Carolina: What's Considered Positive?

In North Carolina, employers may require applicants to undergo drug testing as a condition of employment. If a drug test returns a positive result, the employer must confirm the result through secondary testing at an approved laboratory, unless the employee signs a waiver. The employer must notify the employee of the positive result and their right to a re-test within 30 days. Employees can request a retest at the same or a different approved laboratory, but they must cover the expenses. North Carolina does not restrict the type of drugs tested or the testing methods used, but it does regulate the procedures employers must follow to protect the rights of applicants and employees.

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Employee rights

In North Carolina, employers may require applicants to take a drug test as a condition of employment. However, employees and applicants have rights and protections under state and federal laws. Here are the key points regarding employee rights in the context of drug testing in North Carolina:

Applicant Rights

Applicants who are asked to take a drug test have the right to do so under reasonable and sanitary conditions, with their "individual dignity" respected to the extent possible. Unless the applicant signs a written waiver, a positive test result must be confirmed at an approved laboratory. Applicants also have the right to request a retest of a confirmed positive sample at their own expense, either at the same laboratory or at another approved laboratory of their choosing.

Employees who are subjected to drug testing by their employers have similar rights to applicants. Drug tests must be conducted under reasonable and sanitary conditions, respecting the individual dignity of the employee. Employees also have the right to request a retest of a confirmed positive sample at their own expense, using the same laboratory or another approved alternative.

Discrimination and Privacy Protections

The Americans with Disabilities Act (ADA) protects applicants and employees who are taking medication for a disability. If a prescribed medication shows up on a drug test and results in adverse action, the company could be held liable. Additionally, employers must be cautious not to single out certain groups of employees for drug testing based on protected characteristics such as race, age, or gender, as this could lead to discrimination claims. Furthermore, employers must be mindful of privacy concerns during the testing process. For example, requiring employees to disrobe or provide a urine sample without privacy could violate their privacy rights.

State Law and Procedure

Although North Carolina allows employers to conduct drug testing, they must follow state laws and procedures. The Wage and Hour Bureau enforces the Controlled Substance Examination Regulation Act, which protects individuals from unreliable and inadequate examinations. Employers who deviate from approved testing methods, such as conducting on-site drug screens instead of using approved laboratories, may face legal claims from affected employees.

Employer responsibilities

In North Carolina, employers may require applicants to take a drug test as a condition of employment. However, it is not mandatory to conduct pre-employment drug tests. If an employer chooses to implement a drug-testing program, they must ensure that the process does not violate the privacy or dignity of the applicant.

Employers in North Carolina have several responsibilities and legal obligations to uphold when conducting employee drug tests. These include:

• Providing written notice: Employers must provide written notice to employees informing them of their rights and responsibilities under the Controlled Substance Examination Regulation Act (CSERA). This notice should be given when the sample is taken.
• Confidentiality: Employers must keep information related to drug tests confidential. They can only release this information to the employee or with the employee's written authorization, to laboratories for testing purposes, for employment-related reasons (such as performance evaluations or discipline), or to a governmental agency or court with jurisdiction over any claim involving the employee and employer.
• Respecting employee rights: Employers must respect the individual dignity of employees undergoing drug tests. Testing must be performed under sanitary conditions, and employees have the right to retest a confirmed positive sample at their own expense, either at the same lab or another approved lab of their choosing.
• Minimally invasive procedures: Employers must use reliable and minimally invasive examinations and screenings for drug tests.
• Sample collection: Samples may be collected on-site or at an approved laboratory, but the process must be carried out responsibly and may not violate the employee's privacy.
• Confirmation of positive results: A positive result must be confirmed through secondary testing unless the employee signs a waiver agreeing to the preliminary result. The employer must notify the employee of a positive result within 30 days of receiving the results and inform them of their right to request a re-test.
• Costs: Employers must cover the costs of the original drug test but are not responsible for any expenses associated with re-tests.
• Discrimination: Employers must be mindful of federal and state disability discrimination laws. They cannot discriminate against employees for the lawful use of lawful products during non-working hours. Additionally, they must ensure that drug testing policies are applied fairly and consistently across all employees to avoid potential discrimination claims.

Testing procedures

In North Carolina, employers may require applicants to take a drug test as a condition of employment. However, there are specific testing procedures that must be followed to ensure compliance with state and federal laws. Here are the key points regarding testing procedures:

• Employers must adhere to reliable and minimally invasive testing methods, and screenings must be conducted under reasonable and sanitary conditions. The privacy and dignity of the individual must be respected to the extent possible.
• Specimens may include urine, blood, oral fluids, or hair samples, and they must be collected securely and sanitarily, either on-site or at an approved testing facility.
• Instant result tests, or point-of-collection tests (POCT), are permitted for pre-employment testing only. Other testing methods, such as urine, hair follicle, and oral fluid tests, can be used for current employees.
• Positive test results must be confirmed through secondary testing at an approved laboratory, unless the applicant or employee signs a waiver agreeing to the preliminary result.
• The laboratory conducting the confirmation test must preserve a portion of the confirmed positive samples for at least 90 days.
• Within 30 days of receiving the positive result, the employer must provide written notice to the applicant or employee, informing them of the positive result and their rights and responsibilities regarding re-testing.
• Applicants or employees have the right to request a re-test at their own expense. This re-test can be conducted at the same laboratory or another approved laboratory of their choosing.
• Employers must bear the expenses related to the initial drug tests, while applicants or employees cover the costs of re-tests, including laboratory charges and shipping fees.
• Employers must maintain confidentiality regarding drug test information, only releasing it to authorized entities as outlined in North Carolina's drug testing legislation.
• The North Carolina Department of Labor enforces the Controlled Substance Examination Regulation Act (CSERA), which provides procedural requirements for drug testing and protects individuals from unreliable and inadequate examinations.
• Employers may set the conditions and circumstances that trigger drug tests, including random testing, post-accident testing, reasonable suspicion testing, and follow-up testing.

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Sample collection

In North Carolina, employers are permitted to collect samples of urine, blood, oral fluids, and hair from employees and applicants for drug testing purposes. This is done to maintain a positive work environment, reduce liabilities, and prevent workplace accidents. Employers usually test for a wide range of controlled substances, including cocaine, methadone, opioids, opiates, barbiturates, cannabis, phencyclidine, amphetamines, methamphetamines, and benzodiazepines.

The Controlled Substance Examination Regulation Act (CSERA) protects individuals from unreliable and inadequate examinations and screenings, and it ensures procedural requirements are met for the administration of controlled substance examinations. Employers must also ensure that information related to drug tests is kept confidential and only released under specific circumstances.

Instant result tests, also known as point-of-collection tests (POCT), are reserved for pre-employment testing. Employers are responsible for the expenses related to all drug tests, except for re-tests requested by the applicant or employee, which are the responsibility of the individual.

Positive test confirmation

In North Carolina, if a drug test for an applicant or employee produces a positive result, the employer must confirm that result by conducting secondary testing at an approved laboratory. The laboratory conducting the confirmation test must preserve a portion of the confirmed positive samples for at least 90 days. Within 30 days of receiving the results, the employer must notify the affected applicant or employee in writing of the positive result and their rights and responsibilities regarding re-testing.

The confirmation test must be performed at an approved laboratory, and the applicant or employee must bear the expenses for the re-test. They can choose to have the re-test performed at the same laboratory that conducted the confirmation test or at another approved laboratory of their choice. To do so, they must provide a written request to release the sample, specifying the laboratory to which it should be sent.

The employer is responsible for paying the expenses related to the initial drug test, but the applicant or employee must cover the costs for the re-test, including the actual cost charged by the laboratory, shipping fees, and chain-of-custody expenses. The employer is only responsible for shipping and chain-of-custody procedures up to $15 unless they can prove that the actual cost exceeded this amount.

It is important to note that employers must adhere to specific rules when implementing employee drug testing. The tests must be reliable and minimally invasive, and specimens must be collected securely and under sanitary conditions that respect the individual's dignity. Positive test results must be confirmed through secondary testing unless the employee signs a waiver agreeing to the preliminary result.

Frequently asked questions