Duty of Care Owed To Employee Subjected To Drug Testing

March 26, 2019 - Lisa R. Claxton

On March 20, 2019, the South Carolina Supreme Court recognized that a drug testing laboratory owes a duty of care to an employee who is subjected to drug testing in the employment context.

In Shaw v. Psychemedics Corporation, an employee who was terminated by his employer after a positive drug test filed a lawsuit against the drug testing laboratory alleging negligence and negligent supervision. The testing laboratory filed a motion to dismiss the lawsuit asserting the testing laboratory owed no duty to the employee whose specimen the laboratory tested; therefore, an action for negligence cannot be maintained. The testing laboratory also asserted that the relationship between a drug testing laboratory and employee being tested is too attenuated to give rise to a duty of care.

The South Carolina Supreme Court disagreed. The Supreme Court explained that a drug testing laboratory’s duty of care may arise from the laboratory’s contractual relationship with the employer who ordered the test. The Court went on to examine the public policy considerations in favor of the recognition of a duty of care in this context given the immediate impact to an employee whose positive test result is reported to an employer. In this case, the employee was separated from employment. The Supreme Court explained that without recognition of a duty of care, drug testing laboratories could avoid liability for negligent acts. Accordingly, the South Carolina Supreme Court concluded that a negligence action could be stated in South Carolina against a drug testing laboratory for failure to properly and accurately perform a drug test and report the results.

Given the Supreme Court’s recognition of a negligence action, South Carolina employers may experience an increase in request for retesting and/or challenges to the testing process, especially when disciplinary action is linked to the test result.

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