DRUG TESTING AT WORK?

N.C. Statute Leaves Confusion About Employees' Rights

Salisbury car dealership thought it solved a personnel problem this
year when it fired one of its employees for testing positive for cocaine.

But the routine termination spiraled into an entanglement with the
state, which found the dealership erred in implementing its drug
policy. The owner of Ben Mynatt Pontiac GMC paid a fine a few weeks
ago to the N.C. Department of Labor and back wages to the employee.

"We thought we knew the law," says dealership owner Cindy Mynatt.
"Unfortunately, we had to learn by making an error."

Employers often violate workers' rights without realizing their
practices run afoul of the 1991 N.C. law. Typical infractions include
testing existing employees on company property and failing to give
employees written notice about their rights if they test positive.

Meanwhile, market competition and ambiguity in North Carolina's
statute has created a climate where drug-testing companies are
screening existing employees at workplaces even as regulators are
penalizing businesses for that infraction, the Observer has found.

Job applicants can be screened at an employer's site to save time and
money. Because existing employees have more at stake if a drug test
goes awry, the state requires such testing be done in approved
clinical settings.

Mynatt failed to notify the fired worker in writing of his rights
under the state's Controlled Substance Examination Regulation Act.
Mynatt also erred when it required the worker to pay for his ongoing
drug tests. In all, the company paid $425 in state fines and worker
reimbursements. The worker was not rehired.

North Carolina is among about 25 states that have a drug-testing
statute regulating the private workplace. North Carolina regulators
have investigated 36 drug testing complaints since 2001, public
records show. Of the 19 cases where the state substantiated problems,
most were for failing to provide written notice of rights and testing
existing employees on-site, regulators say.

South Carolina does not have a similar statute.

A workplace fixture for some two decades, drug testing faced renewed
attention this year after the federal government proposed extending
drug testing policies for federal workers. Some saw the proposal to
add hair, sweat or saliva tests as incursions in a broader attack on
civil liberties after the 9-11 terror attacks. Others worried that
such tests were unreliable.

The American Civil Liberties Union opposes random and job-applicant
drug tests, likening them to old practices of England, when King
George's soldiers conducted indiscriminate searches of Colonial Americans.

The ACLU also cites studies showing that in some cases
over-the-counter medication has produced positive results for illegal
drugs.

Mynatt used to gather workers into a corridor just off the showroom
and collect employee urine samples in the men's restroom. Staff from
drug-screening firm ProMed would perform tests at the dealership.
Suspect samples were sent to a certified lab.

Mynatt said the dealership was about to bring testing back on-site as
a convenience for her staff, but reversed course when told about the
state's posture.

"If there's any gray area, I'm not walking in it," she
said.

Clifford Callaway, medical director at ProMed, says his company with
operations in Charlotte and Salisbury, determined the statute was
"deficient" and that major competitors also were pushing the law's
boundary.

The statute says companies can perform screening test on-site for
"prospective employees." The state interprets that as limiting on-site
testing to applicants.

Callaway says the language "does not go the second step and say you
may not test enrolled employees," adding that the wording "leaves an
ambiguity."

He said ProMed intends to continue testing at client
companies.

Scott MacGregor, office manager for Charlotte-based drug screening
firm OccMed, said the company routinely dispatches a nurse to test
existing employees, particularly at large companies.

When the Observer asked about OccMed's take on state law, MacGregor
said, "I'm unaware of this issue. This is the first time I'm hearing
this."

David Peterson, OccMed's medical director, said he would investigate.
National operations such as Burlington-based LabCorp and Quest
Diagnostics Inc. test existing N.C. employees.

Concentra Medical Centers, another national firm based in Texas and
major competitor with Charlotte's ProMed, says it only tests
applicants, not current employees, at workplaces.

John Hoomani, an attorney with the N.C. Department of Labor, conceded
the "statute could be written better," but maintained that the law
permits on-site testing only for job applicants.

While the drug law is intended to protect employee rights, another
N.C. law gives employers wide latitude to fire workers. Both Carolinas
are so-called at-will states, where a company can terminate workers
for almost any reason. Exceptions include cases of discrimination or
whistleblowing when public safety is at risk.

North Carolina only investigates drug-testing cases when employees
file complaints. Hoomani said businesses that allow on-site testing of
existing employees could be "more susceptible to getting fined."

The state can fine up to $250 per violation, and no more than $1,000
per investigation.

Jim Taylor, bureau chief of the state DOL's Wage and Hour Division,
emphasized that employers are responsible for fines, even when a
drug-testing firm or lab is at fault for a violation. While the fines
may cause little financial pain, resulting civil litigation can.

A 1999 drug-testing case migrated all the way to the N.C. Supreme
Court after a Greensboro construction company fired a carpenter for
testing positive for marijuana. The carpenter sued for wrongful
termination, noting the company failed to have his urine tested at a
state-approved lab. The court ruled that a company legally can fire an
employee for drug use even when the employer violates the state's
drug-testing law.