Like several other states, South Carolina law establishes an incentive for employers to engage in testing of their employees for illegal drug use. South Carolina has a drug-free workplace program. If an employer adopts such a program, as certified by the state’s Board of Workers’ Compensation, the employer may qualify for a discount on their workers’ compensation insurance premiums.
However, employers must comply with South Carolina’s state employee drug testing laws to get their discount. In South Carolina, employers are required to test their employees in certain circumstances, and they must observe certain procedures designed to protect the rights of employees and job applicants in connection with the state-approved, drug-free workplace program.
A drug test is a chemical analysis of a biological specimen, commonly a person’s blood, breath, urine, or hair. The test is used to detect evidence of the presence or absence of specified drugs in a person’s body.
In South Carolina, among the controlled substances for which employers might test employees are the following:
- Amphetamines,
- Cannabinoids,
- Cocaine;
- Phencyclidine (PCP);
- Methadone;
- Methaqualone;
- Opiates;
- Barbiturates;
- Benzodiazepines;
- Propoxyphene;
- The metabolites of these substances.
An employer might also test for alcohol intoxication through the use of blood alcohol content (BAC) tests of a person’s blood, or tests of their breath, or urine.
What Are the Rules for Testing Current Employees?
Employers in South Carolina who have adopted a state-approved, drug-free workplace program must test employees in the following situations:
- After an accident has happened that resulted in lost work time;
- On the basis of having reasonable suspicion that an employee has used drugs. The reasons that justify the suspicion must be documented and made available to the employee on request;
- As an element of a routine fit-for-duty medical examination; and
- After an employee returns to the workplace following rehabilitation for a positive drug test. Testing is not required if the employee entered rehabilitation voluntarily rather than after a positive drug test.
In addition, employers may engage in drug testing on a random basis. The state of South Carolina also engages in government employee drug testing, because it has a policy of maintaining workplaces free of alcohol and drug abuse. So the employees of South Carolina state agencies may be required to undergo drug testing.
An employer that conducts drug testing is not required to provide their employees with a written policy about their drug testing, but it would be a smart policy to do so. Employers in the drug-free workplace program are required to provide a written drug-free workplace policy. It should state what the employer’s testing procedures are, the consequences of a positive test, and the employees’ rights.
A new employee should receive a copy of the policy at the time of hire, and it should also be accessible for review by employees, preferably at any time. Employers who are parties to collective bargaining agreements or government contracts may have additional notice requirements.
And employers must comply with all federal laws that apply to drug testing, such as the Americans with Disabilities Act (ADA), which prohibits testing that is excessively invasive or done in a discriminatory manner. Employees in safety-sensitive positions regulated by the U.S. Department of Transportation (DOT) are subject to federal random testing requirements.
Employees should receive notice before a policy is enforced. Employees failing a drug test should be given time to contest or explain the result.
Can I Refuse a Drug Test at Work?
Virtually every state allows employers to require drug testing of job applicants. Testing a person after they have been given a conditional offer of employment is allowed in South Carolina. If a person tests positive, an employer may refuse to hire the applicant because they tested positive.
Some states limit the situations in which an employer may require testing of current employees. As noted above, in South Carolina, an employer who has a state-approved drug-testing program needs to observe the rules of the state-approved program.
Otherwise, South Carolina law allows employers to engage in random testing and any other lawful type of workplace drug testing. Employers are under no obligation to accommodate the use of medical marijuana by employees. They are free to implement zero-tolerance policies for both on and off-duty use of drugs, and they may punish employees who violate their policies.
Marijuana is illegal for both recreational and medical purposes in South Carolina. The use of CBD oil is allowed only for patients who qualify because they suffer from chronic seizures caused by epilepsy. A local attorney in South Carolina would be able to provide more information about South Carolina’s laws regarding marijuana.
Of course, an employer may not physically force a person, either a job applicant or an employee, to take a drug test. However, while an applicant has a right to refuse a drug test, the employer has the right to refuse them a job for that reason. If it is a current employee who refuses a legitimate test, the employer may impose sanctions up to and including firing.
If an employee objects to drug testing, they would want to become familiar with their employer’s drug-testing policy. They might be able to avoid any drug testing that is not done in compliance with the employer’s state-approved drug-testing program. Otherwise, however, refusing to take a drug test at work could lead to negative consequences, including loss of one’s employment.
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What Are the Consequences of Refusing To Take a Drug Test?
The consequence of refusing to take a drug test mandated by an employer depends on the drug testing policy of the employer. If the employer asks an employee to take a test, the employee would want to know on what grounds they might refuse testing.
But legally, an employer may subject a person who refuses drug testing to disciplinary action. Disciplinary action may include termination of the person’s employment. Contact an employment law attorney if you have any questions about these rules, especially regarding government employee drug testing laws.
Are There Any Exceptions?
There are some very limited exceptions to these rules allowing drug testing. A person may have a legitimate medical condition that prevents them from taking a urine test. So, if a person were able to provide a doctor’s note that excuses the person from urine testing, they might escape it without negative consequences.
The federal ADA does not prevent employers from enforcing drug-free workplace policies or otherwise testing employees for drug use. It does not offer any kind of protection to employees who are using illegal drugs.
However, the ADA does make it illegal for employers to engage in employment discrimination against recovering alcoholics and drug users who are already receiving treatment for their addiction.
Also, under the terms of the ADA:
- Employers are prohibited from firing, refusing to hire, or refusing to promote a person, because they have a history of substance use;
- Employers are also prohibited from firing, refusing to hire, or refusing to promote employees because they are enrolled in a drug or alcohol rehabilitation program.
Employers who have drug-testing programs want to be careful not to focus on employees for testing because they look or act as though they are under the influence of drugs or alcohol. Many of the physical symptoms usually associated with alcohol and drug intoxication, e.g., slurred speech, disorientation, or a lack of coordination, can also be the result of a serious physical disability or medical condition.
People with disabilities or conditions that might mimic intoxication are protected by the ADA. Selective drug testing could lead to claims of discrimination.
Finally, employers should not ask employees about their legal prescription drug use in connection with any pre-hiring or pre-promotion drug-testing process. Some state courts have ruled that requesting information of this kind constitutes a form of discrimination and violates the ADA.
While challenges to drug testing or drug-free workplace policies under Title VII of the Civil Rights Act are rare, employers should make sure that their programs treat all workers equally. Employers want to avoid singling out employees of any particular race, ethnicity, or gender for testing or disciplinary action, so as to avoid violating Title VII of the federal Civil Rights Act.
Again, a person would want to review their employer’s own policies, if the employer has them, to see if it allows exceptions. And it is important to keep in mind that an employer’s policies may provide that if a person takes and fails a mandatory drug test, the employer would not fire the person but would refer them to treatment or counseling.
Do I Need an Attorney if I Refuse To Take a Drug Test?
If you are concerned about your employer’s drug-testing policy, you want to consult a South Carolina discrimination lawyer. LegalMatch.com can connect you to an experienced lawyer who can review your employer’s policy and tell you what your rights are.
If you are an employer and are not sure that your policy complies with all applicable laws, your lawyer can review your policy and ensure your compliance. Employment law matters can be complex, but a lawyer can provide you with the representation and guidance needed for your case.
