What is the Law Regarding Drug Testing Employees in South Carolina?
The legal landscape for drug testing in South Carolina is governed by a combination of state and federal laws. At the federal level, the Drug-Free Workplace Act of 1988 provides a framework for how certain federal contractors and recipients of federal grants should manage drug testing in their workplace. South Carolina has not enacted any comprehensive state laws governing drug testing. However, like other states, South Carolina prohibits drug testing in certain circumstances based on the basis of genetics, according to its Genetic Privacy law. South Carolina employers must also compliance with federal regulations.
Private Employers
Private employers are not required by law to have drug testing programs in place in the workplace. But, if they do have them, they are free to implement their own drug testing policies.
Pre-Employment Testing
Pre-employment testing has been found by the South Carolina Supreme Court to not be a violation of public policy, so long as it is performed after an offer of employment has been extended. South Carolina restrictions dictate that private employers must not:
• Discriminate against individuals on the basis of race, color, religion, sex, age, disability, genetic information, or pregnancy
• Test prospective employees for the presence of drugs or alcohol at any time before an offer of employment has been granted.
In addition , pre-employment drug testing must comply with the requirements of either the Americans with Disabilities Act (ADA) or the Rehabilitation Act of 1973. The decision not to hire may be based on the results of a genetic test only if such results indicate that a person is at significant risk of injury to himself and others would not be otherwise possible. If pre-employment drug testing reveals a disability, the employer is prohibited from excluding the individual, providing he or she would not pose a direct threat to health and safety.
Post-Accident Testing
Currently, South Carolina does not have any comprehensive law that deals with post-accident drug testing in the workplace. Employers are generally allowed to require their employees to submit to a drug test after work-related accidents. Employers cannot require any employee to pay for the cost of a drug test or hang on to any test results longer than required for the employer to make informed employment decisions.
Return to Work Testing
Return to work testing is not required under South Carolina law. But, if an employer does require an employee returning to work to pass a drug test, the employer cannot deny reemployment to an individual who tests positive or has been a drug abuser or illegal drug user. This same restriction also applies to employers who have part-time and permanent workers.
Rights of Employers
An employer in South Carolina has the right to require drug testing, although under certain circumstances certain employees are exempt. Employers test for a variety of reasons, including pre-employment, post-motor vehicle accident, and probable cause. Employers have a legal obligation to maintain a drug-free workplace under tort law. Employers maintain a drug-free workplace by conducting drug testing programs and drug treatment programs amongst other initiatives. As a pre-requisite to be eligible for immunity from lawsuits arising from drug testing, an employer must establish a drug and alcohol policy that includes the left requirements as set forth by the South Carolina Code of Laws. SAMHSA also has written criteria outlining the precise requirements of a drug free workplace program.
Rights of Employees
Employee Rights and Proteions
Protections for Employees
The South Carolina drug test law limits the circumstances in which employees of private employers may be drug tested. The law also requires employers to make certain disclosures, such as their drug testing policies and procedures. An employer’s drug test policy and procedures must: Employees have a right to receive a copy of the employer’s testing policy and be notified in writing that they are subject to it. It must be provided either before or at the time it is administered. Employees have a right to consent to drug testing prior to the test being administered. Permission must be given voluntarily (no coercion or duress is permitted) and must be signed by the employee. Employees have a right to have urine specimens collected in a private area. When this is not possible due to unusual circumstances, the specimen collector must be of the same sex as the employee. Employees have a right to have a witness present during the collection of urine specimens. Employees are prohibited from directly observing another employee’s urine specimen collection. Employees have a right to have their testing done by a laboratory certified by the Department of Health and Environmental Control. These laboratories must use the procedures set out by the federal agency, which deals with drug testing in federal workplaces. Employees have a right to know the results of their tests. If not notified in person, the employer must rapidly notify employees of the results, except for the actual test results. No later than 15 days after the sample was given, if the employee’s test results indicate the presence of drugs in their system, the employee must be notified and given the name and address of the laboratory that conducted the test. The law further mandates that, where there is an indication that the presence of drugs in an employee’s system resulted from a prescribed medicine, the employer will inform the employee that the results indicate the presence of drugs and that the employee will keep the laboratory address but not the test results themselves. Employees have a right to have a positive confirmatory test result validated, confirmed and reviewed by a medical review officer. This officer cannot, however, do the original test or directly supervise it. The law states all employees must be interviewed by a medical officer to ensure testing procedures were followed and whether the employee is taking any medications that might account for the positive result. Employees have a right to the names and addresses of any lab personnel responsible for the actual testing performed. The law requires employment drug test results to be maintained for at least two years after taking place. As discussed, employees have a right to have their urine specimens collected in a private area unless unusual circumstances exist. Employees have the right to see things like a door that closes and locks, or a wall that keeps out observers, but should be able to view the collection area if an unusual circumstance requires that it be open. Also, the privacy containers produced by industrial manufacturers and used by many employers to allow a sample to be given in full privacy would seem to satisfy the privacy standard set out in the law.
Types of Tests Authorized
Types of drug tests permitted by SC law in the workplace
Urine testing is permissible where the employer has established a written policy stating that random drug testing will be performed, that refusal to participate in random drug testing will lead to employee discipline and/or termination, and that testing will only occur in reasonable, nondiscriminatory circumstances.
If an employer wants to conduct a drug test upon reasonable belief that an employee is under the influence or as a follow-up to an accident, it must also do it in accordance with the written policy.
The statute further provides that hair tests are permissible for testing both job applicants and job refusals. A job applicant may be tested "only" for drugs, but employees on the job could be tested for drugs or alcohol.
The employer must establish a written substance abuse policy, as described elsewhere in this article. A hair test must detect only alcohol or drugs, and it need not be confirmatory if a non-negative test is found. The statute states it shall be a defense to any negligence lawsuit alleging intoxication that the employee was intoxicated or impaired as determined by the testing method and the results must confirm such intoxication or impairment. Even though the statute does not readily apply to negligence lawsuits, as it does not address intentional torts, it may apply to these type of intentional torts because "intoxication or impairment" includes consumption of drugs or alcohol, which is necessary to prove such claims.
Blood tests are permissible where the employer establishes a written policy for post-accident drug testing. It can be performed on an employee where the Cdr. or designee determined the employee has engaged in conduct which may pose a threat to the health and safety of other employees or customers. As stated in this article, there are numerous side tests that can be administered as part of the drug testing process, but this testing should be done carefully to avoid liability.
An employer is not required to offer a breath test rather than a blood test where it employee reasonably believes a blood test is not appropriate; corporations, partnerships, and LLC’s are excluded from using breath tests on job applicants or employees and shall require blood tests for job applicants and employees.
Drug Testing as a Condition of Employment
Commonly used to ensure a safe and efficient workplace, drug testing is a staple of the hiring and post-hiring process for many employers. It may also be required by law for employers who operate in certain heavy-industries or who contract with the government.
Pre-employment screening for illegal drugs is generally permitted in South Carolina and occurs with some frequency after a conditional offer has been made to a prospective employee. In order to conduct pre-employment drug testing, the employer must first clearly and conspicuously:
a. LIST the substances to be tested;
b. include notice that a positive test will result in the withdrawal of the offer of employment; and
c. include notice that, if the applicant refuses to submit to testing, the employer may refuse to hire the applicant.
If an applicant is required to pay the cost of any of the screening or testing services that the employer requests, the employer must reimburse the applicant for those costs if the applicant is hired.
Although an applicant cannot be required to submit to urinalysis or other invasive medical procedures, the applicant may still be subject to post-hire screening and other testing . If the employer "believes that the efficiency of the employee is impaired due to use of a controlled substance" the employer can require random and periodic testing of employees for illegal drugs. The employer must then provide a copy of SC’s drug-free workplace law to the employee before conducting a drug test. And, if an employer does not wish to rely on random testing, it may simply choose to include provisions requiring testing for any or all of its employees in its employee handbook or policy.
Employers are not allowed to make drug treatment programs or information available to the general public or refer applicants/employees to specific treatment programs without specific applicant/employee permission. Employers are free to give these programs and information to referring attorneys, courts, and employee assistance programs. Employers who maintain drug-free workplaces are specifically prohibited from denying unemployment benefits to any employee or applicant for reasons related to an employee’s involvement with alcohol or drugs. Additional protections may exist for employees working in certain private industry or in jobs related to the federal government or national security.
Consequences for Non-Compliance and Legal Ramifications
An employer’s failure to follow the drug testing laws can lead not only to the discomfort of dealing with a law suit, but also to the imposition of penalties against the offending employer. The state is currently considering changes to the law which would further limit employers’ abilities to enforce mandatory testing. However, until those changes take effect, there are still best practices employers should be aware of, such as using the services of a Medical Review Officer.
Also, employers must ensure that they’re advising their employees correctly concerning confidentiality issues. If an employer does not do so and, as a result, does not advise its employees that information related to drug tests is confidential, the employee may seek damages.
The South Carolina Supreme Court found in 2013 in Ladson v. Beneficial Mortgage Co. that the "employer/employee relationship is a ‘special confidential relationship.’" Where there is a "special confidential relationship," the court has the power to impose liability or duties "imposed by the court according to the circumstances." It doesn’t require a case of actual fraud to occur, but requires only that a breach of the duty not to disclose confidential information occurred. The plaintiff in Ladson "did not plead the common law tort of breach of a confidential relationship, but simply attempted to plead negligence." The court held this was error, and that it was error for the case not to go forward on a claim of breach of a confidential relationship, because the information at issue was confidential.
Employers who conduct drug testing may, however, seek statutory damages of $10,000.00 for "[a]ny employer required to submit random drug tests shall pay a statutory fine of $10,000 dollars to the Department of Health and Environmental Control" where he satisfies both of the following conditions: (1) fails to have a Medical Review Officer if a non-negative test result is forwarded; and (2) fails to notify the Department of Health and Environmental Control within 48 hours when tests are positive or when a non-negative test result is forwarded.
The law does say, however, that the Department of Health and Environmental Control "shall not impose a fine" if an appeal is filed and resolved in the employer’s favor.
Recent Amendments and Case Law
There have been a number of recent changes and developments in South Carolina drug testing laws. First, in December 2020, the South Carolina Supreme Court issued a new decision that significantly affects the way drug testing results are used in administrative proceedings at the South Carolina Department of Employment and Workforce ("DEW"). The decision, SCDHEC v. DJJ, 426 S.C. 161 (2020), held that for PE drug tests administered by labs that are not certified for "forensic use" or for DOT-regulated drug tests administered at a facility that is not certified for drug and alcohol testing by the Department of Health and Environmental Control ("DHEC") Office of Occupational Health, the chain-of-custody must be conducted by a certified collector trained in the federal DOT guidelines. This decision raises questions about whether the widespread practice of collecting samples by non-certified collectors (like healthcare providers during an injury treatment visit) causes the test to be invalid for all purposes. The implications of this case will continue to unfold as employers and insurers grapple with its impact.
Beyond this case, the South Carolina legislature continues to explore other potential changes to the drug testing laws. Bills that would increase the allowable THC levels in drug tests by an amount that would effectively eliminate the possibility of any true positive test are periodically introduced, often with the stated purpose of protecting employees injured on the job from a positive test that could deny them benefits under the drug testing law . In 2015, legislation was introduced to change the allowable THC level parameters in the accident and injury exclusion of the drug testing law. The bill failed to pass in 2016, but it was reintroduced in 2019 in the House and assigned to committee. However, the bill never made it out of the committee. Similarly, in 2019 bills were introduced in the legislature to ban mandatory blood testing and to remove the bright line accidents and injuries exception from the no-fault provisions. All of these bills were also assigned to committee where they died.
Finally, in the 2019-2020 session, Senate Bill S.0263 was introduced into the South Carolina legislature with the intention to add new qualifications and requirements for the training of certified breath alcohol testing technicians. The Bill proposed that any training program offered to prospective breath alcohol testing, portable breath alcohol testing, or evidential breath test technicians must be taught in person and administered in the State of South Carolina and would require the program to be approved by and the approvals published on the breath alcohol testing website (presumably DHEC). The proposed Bill explains that the necessity for the Amendments would be to clarify requirements for approval of the training programs and costs for potential employers. As of the date of this posting, this Bill has not made its way through all the necessary legislative processes.