Flunking a pre-employment drug test could cause South Carolina job applicants to lose unemployment benefits as well as being denied a job.

South Carolina legislators are voting on a bill allowing employers who administer pre-employment drug tests to report to state unemployment officials applicants who test positive for illegal drugs or drugs used unlawfully.  Unemployment benefits can then be cut off for a “failure to accept work.” The principle sponsor of the measure (H.3165), Rep. Edward R. Tallon, Sr. (R.-Spartanburg) explained, “If it’s a prerequisite to go to work for a company to pass a drug test and you don’t pass it, then you’re not fit and able to go to work, so therefore…you should be denied any benefits for being unemployed, because you were offered a job but weren’t fit to take it.”  The bill also covers refusals to test, including adulterated specimens.  The State House of Representatives will vote shortly.  A similar bill passed the House last year, but the legislative session ended before the Senate could vote.  The bill to amend §41-35-1200 of the South Carolina Code would not mandate that private employers perform pre-employment testing.

The bill provides that employers are not liable for acts or omissions arising out of the disclosure of test results to the Department of Employment and Workforce, provided the employer “complies with the requirements of this section and any applicable law.”  An employer may disclose to the Department when a pre-employment drug test is offered and refused or failed by a potential employee.  Refusals to cooperate by providing adulterated specimens also are covered, but need not do so.  The sample used for the testing, whether blood, hair or urine, must be collected and labeled by a licensed health care provider or other person authorized to do so by state or federal law, the test must be performed by a laboratory certified by the U.S. Department of Health and Human Services (Substance Abuse and Mental Health Services Administration (“SAMHSA”)), the College of American Pathologists or the State Law Enforcement Division, and an initial positive test on the specimen must be confirmed by gas chromatography/mass spectrometry, or an equivalent or more accurate method approved by SAMHSA.  Records obtained by officials relating to positive tests or refusals may not be used for any purpose other than to determine unemployment benefits and must be destroyed if they relate to any person not receiving benefits.

South Carolina employers may wish to review their substance abuse policies if this bill becomes law.  We will follow its progress here.