The North Carolina Department of Labor has imposed detailed regulations on procedures for conducting drug tests.  This web of rules can create pitfalls for the unwary employer.  Remember these points to avoid trouble:

Drug testing can be a useful tool to promote workplace safety, but detailed regulations create possible pitfalls.  Be sure to have forms in place to notify employees of their legal rights, and use an experienced, reputable company to perform the testing.

• Employers may require a drug test at any time, although most are used (a) after an applicant has a conditional job offer; (b) after an accident; (c) upon reasonable suspicion that the employee is under the influence; or (d) randomly and without notice.  Of course, be careful that testing does not appear to discriminate or retaliate.
• An employer must provide written notice to applicants and employees of their rights and responsibilities under the Act before a test is conducted.  This notice should include a statement of the employee's right to have any positive sample retested.
• Employers may collect samples at the work site as long as the process preserves individual dignity.  But, be careful: chain of custody must be proven, and the sample must be preserved for ninety days after the employee is told of the results.  Any mistake here can invalidate a positive test result.
• An employer may not screen an employee's sample on-site.  The rules allow screening an applicant's sample on-site, but any positive result must then be confirmed by testing at an approved laboratory.  There is greater risk of an innocent mistake in the practice of screening an applicant's sample on-site, as opposed to using an outside drug testing company.
• Within thirty days of receiving test results, the employer must notify the employee of the results and remind the employee of his or her right to re-test the sample within ninety days.
• Refusal to submit to a test may result in the same discipline as would ordinarily be handed out for disobeying a supervisor's instructions.
• If an employer fires an employee based on a drug test result but has not followed the proper procedures, the employee might be able to sue for wrongful discharge.  A recent North Carolina Supreme Court case suggests that an employee can sue if the employer knew or should have known of the defective procedure before deciding to discharge the employee.