May an employer drug test applicants?

Yes. However, an employer must follow the Controlled Substance Examination Regulation Act requirements, N.C.G.S. Chapter 96 Article 20 and applicable administrative rules North Carolina Administrative Code Title l3 Chapter 20. Here is a summary of the legal requirements:

  1. The collection of samples must be under reasonable and sanitary conditions with individual dignity preserved. (Although not required, it likely makes the most sense to have a person report to a testing facility.)
  2. If a prospective employee has a positive result, the laboratory shall confirm the result by a second examination of the sample, utilizing gas chromatography with mass spectrometry or an equivalent scientifically accepted method.
  3. If there is a positive result, the laboratory must keep a sample of the confirmed positive for ninety days.
  4. An examinee shall have the right to retest to confirm a positive sample at the same or another approved laboratory.
  5. When obtaining the sample, the examiner must provide examinees with written notice of their rights and responsibilities under the Controlled Substance Examination Act.
  6. Within thirty days of the time the results are mailed or otherwise delivered to the examiner, they shall give the examinee the following notice in writing: (a) any positive result and a document setting forth the examinee’s rights and responsibilities regarding retesting under N.C.G.S. § 95-232(f).

Due to the cost and the specific technical requirements of drug testing, the best practice is to have testing done by an approved laboratory with experience in complying with this law. Additionally, due to the cost, most employers make conditional offers to applicants requiring them to pass a drug test. If the drug test is not passed by an applicant given a conditional offer, the best course of action is to allow the time period for this individual to appeal such a drug test to expire before taking further action.

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The information herein is not legal advice. The information is in the form of legal education and is intended to provide general information about the matter discussed.  The above is not, nor is it intended to be, legal advice and does not create an attorney/client relationship.