In May 2005, the law in the state of South Carolina changed regarding an employee’s disqualification for unemployment benefits due to a positive drug test. Under the revised law, an employee is considered by the South Carolina Employment Security Commission to have been discharged “for cause” and ineligible for unemployment benefits if the employer has communicated a policy prohibiting the illegal use of drugs and the employee fails a drug test. The individual collecting the sample, the laboratory performing the test, and the type of confirmation testing used must all meet the specific requirements set out in S.C. Code Ann. Section 41-35-120(2)(b)(iii).

According to the general counsel at the Employment Security Commission, the new standards set forth in Section 41-35-120(2)(b)(iii) are not intended to be “anti-business” but instead are an attempt to make employ-ers more comfortable in disclosing confidential medical information. In this attempt, however, the Employment Security Commission put into place some stringent requirements for  employers.

In addition to the requirements found in Section 41-35-120(2)(b)(iii), a recent Employment Security hearing indicated that to prevail the employer also must produce information establishing the sample’s chain of custody between the company’s facility and the testing laboratory.

Employers’ Checklist

The following information is a general checklist intended to help South Carolina employers satisfy the requirements set forth by the Employment Security Commission to ensure that employees who are terminated for cause for failing a drug test will be found ineligible to receive unemployment benefits:

  • Any person collecting and labeling samples must be:

             a. a licensed health care professional; or

             b. an individual authorized to collect and label test
                 samples by federal and state law.

  • The test must be performed by a laboratory certified by:

             a. the National Institute on Drug Abuse;

             b. the College of American Patho-logists; or

             c. a State Law Enforcement Division.

  • The employee should complete and sign a drug testing consent form.
  • The collector of the sample should follow all instructions and completely fill out all steps of the custody and control form provided by the drug testing laboratory.
  • The collector should obtain a sample from the donor and place the sample in the collection envelope in accordance with the procedures provided by the drug testing laboratory.
  • The collector should make a photocopy of the completed custody and control form.
  • The collector should follow all instructions from the drug testing laboratory regarding sealing the collection envelope.
  • The collector should make a photocopy of the sealed collection envelope.
  • The company should keep copies of shipping receipts and any other tracking information establishing a chain of custody between the company and the drug testing laboratory.
  • The company should keep a copy of the drug test results from the drug testing laboratory.
  • An initial positive test must be confirmed on the specimen using:

             a. gas chromatography/mass spectrometry method; or

             b. an equivalent or more accurate scientifically
                 accepted method.

Additional Information

It should be noted that the statute does not define “licensed health care professional” and does not provide information on the individuals authorized to collect and label the test samples. Moreover, the National Institute on Drug Abuse has turned over certification of laboratories to the Substance Abuse and Mental Health Services Administration, but this change is not reflected in S.C. Code Section 41-35-120(2)(b)(iii).

Note: This article was published in the Dec/Jan 2007 issue of the South Carolina eAuthority.

Browse More Insights

Practice Group

Employee Benefits and Executive Compensation

Ogletree Deakins has one of the largest teams of employee benefits and executive compensation practitioners in the United States. As part of a firm that focuses on labor and employment law, our Employee Benefits Practice Group has a special ability to relate technical experience to the client’s “big picture” issues.

Learn more
Practice Group

Employment Law

Ogletree Deakins’ employment lawyers are experienced in all aspects of employment law, from day-to-day advice to complex employment litigation.

Learn more

Sign up to receive emails about new developments and upcoming programs.

Sign Up Now