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Background on Testing

Like most other states, North Carolina allows (but does not require) its employers to conduct employee drug tests in a variety of circumstances including pre-employment testing, random testing, testing following an accident, or testing when the employer has reasonable suspicion of employee substance use while on the job.  Under North Carolina law, employers may require a urine, blood, hair, or oral fluid drug test.  The employer must provide written notice to the employee or the applicant of their rights prior to the examination.  The sample must be tested by approved laboratory.  When the test returns a positive result, the positive result must be confirmed by the laboratory.  If a drug test returns a positive laboratory result, within thirty (30) days of that result the employer must notify the employee of the positive result and notify the employee of their rights to a retest.  The employee can request a retest at the same laboratory or a different, state-approved laboratory.

Who Pays for Employee Drug Testing?

Employers often wonder if they can require the employee to pay the costs for the testing, particularly at the pre-employment stage, as a means of filtering out applicants who know they will not pass the drug test.  While many states allow employers to pass the costs of drug testing onto the employee or applicant, North Carolina law largely prevents employers in the state from doing so.  Buried in North Carolina’s Administrative Code, 13 NCAC 20 .0601 states that the “examiner shall pay expenses related to all controlled substance examinations except examinee-requested retests.”  Thus, under North Carolina law, all initial drug testing costs must be borne by the employer.  The only exception to the general rule that employers must pay the costs for drug testing is that the costs can be passed on to the employee if the employee requests a retest of a confirmed positive result.

An employer who does not comply with the state regulations pertaining to drug testing may be subject to civil penalties of $250 per affected employee or applicant.

Conclusion

North Carolina employers must be careful to comply with all drug testing requirements under North Carolina law or risk facing state-imposed penalties and fees.    Should you have any questions or concerns about drug testing requirements under North Carolina law, please contact Denis Jacobson at djacobson@tuggleduggins.com or (336) 271-5242 or Daniel Stratton at dstratton@tuggleduggins.com or (336) 271-5240.

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