What G.S. 95-230 requires of employers, in plain English.

Scope

Who the Act applies to

The Controlled Substance Examination Regulation Act sits at Article 20 of Chapter 95 of the General Statutes, sections 95-230 through 95-235. It governs the procedural conduct of controlled substance examinations.

An examiner is any person, firm or corporation doing business in the state, including state, county and municipal employers, who is the employer or prospective employer of the person being tested. An examinee is an employee or an applicant who is asked or required to submit to testing.

The stated purpose is to protect individuals from unreliable and inadequate examinations while letting employers choose from a range of cost effective testing technologies. It is a procedural statute, not a prohibition.

What it does not do

Section 95-233 is explicit that nothing in the Article places any duty on an employer to conduct testing at all. The Act regulates how you test if you choose to, not whether you must.

Section 95-235 exempts examinations required by the United States Department of Transportation or the Nuclear Regulatory Commission. If you run both DOT and company policy testing, the two populations follow different rules and should be documented separately.

Collection

Collection must be performed under reasonable and sanitary conditions, and individual dignity must be preserved so far as practicable. Samples must be collected in a manner reasonably calculated to prevent substitution or interference.

The statute states directly that samples for prospective or current employees may be collected on site or at an approved laboratory. On-site collection is expressly contemplated by the law, not a workaround.

Screening and confirmation

For a prospective employee, a preliminary screening procedure using a single use test device is permitted. If that screen is positive, an approved laboratory must confirm it using gas chromatography with mass spectrometry or an equivalent scientifically accepted method, unless the examinee signs a written waiver.

For a current employee, the screening test itself may only be performed by an approved laboratory, and every positive screen must be confirmed by the same class of method. There is no waiver route here.

An approved laboratory means one that has demonstrated satisfactory performance in the forensic urine drug testing programs of the US Department of Health and Human Services, or those of the College of American Pathologists, for the tests and substances being evaluated.

Retention and retesting

A portion of every sample producing a confirmed positive must be preserved by the confirming laboratory for at least 90 days from the date the result is delivered to the employer.

Within that period the examinee has the right to have the confirmed positive sample retested at the same or another approved laboratory. The request must be in writing and must specify the laboratory. The examinee bears the reasonable costs of chain of custody, shipping and retesting.

This right is the practical reason the retention period exists. An employer who cannot facilitate a retest because the sample was not preserved has a problem that no amount of policy language fixes.

Chain of custody

The employer or its agent must establish procedures for chain of custody covering collection and examination, to ensure proper record keeping, handling, labelling and identification of samples. Note that this obligation sits with the employer, even where the collection is performed by a third party.

Penalties

An examiner who violates the Article is subject to a civil penalty of up to $250 per affected examinee, with a maximum of $1,000 per investigation by the Commissioner of Labor. In setting the amount the Commissioner considers the size of the employer's business and the gravity of the violation.

A determination becomes final unless the employer takes exception within 15 days of receiving notice. Penalties are subject to a two year limitation period running from the time of the violation.