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No requirement to tell about drug retest rights

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in Firing,Hiring,Human Resources

North Carolina has stringent rules to ensure that employers test their employees for drug use in an accurate and reliable way.

The law requires retaining enough of the blood or urine sample so a second test can be conducted if necessary. Employees have 90 days to request a second test on that sample, either by the same laboratory or another qualified lab.

However, the law doesn’t require employers to tell employees about their retesting rights.

Recent case: Herbert Sturdivant drove a bus for the city of Salisbury. When he was involved in an accident that disabled his bus, the city required him to immediately undergo urinalysis for the presence of alcohol or illicit drugs.

The test came back positive for marijuana and Sturdivant was fired, since the municipal drug policy clearly stated working under the influence of illegal drugs or alcohol was a firing offense.

Sturdivant sued, alleging that the city never informed him that he had the right to retest the sample.

The court dismissed his case. It reasoned that nothing in the law actually placed a duty on employers to let employees know they have the right to a retest on the same sample. (Sturdivant v. City of Salisbury, No. 1:09-CV-468, MD NC, 2010)

Final note: When it passed the state’s drug testing law, the North Carolina Legislature declared that individuals should be protected from unreliable and inadequate examinations and screening for controlled substances. In addition to allowing employees to challenge test results, the statute requires confirming positive results with a second test, preserving samples for possible retesting and maintaining the chain of custody to ensure that the correct sample is tested.

Make sure the drug testing lab you use understands the requirements and can certify that it follows the rules.

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