In December 2018, a Phoenix, Arizona woman, who spent the last fourteen (14) years in a coma, gave birth to a healthy baby. A police investigation concluded that, while in her comatose state, she had been raped multiple times. The staff at the healthcare facility where she was a patient stated that no one knew she was pregnant until she went into labor. In response to a search warrant issued to the employer, the employer requested that all male employees provide a DNA sample to determine whether the individual who impregnated the woman was a staff member.
Without question, the facts of this investigation are shocking. However, it does raise interesting issues about the right to privacy in the workplace. Specifically, can an employer or prospective employer compel employees or job candidates to submit to drug or DNA testing? Additionally, can an employer refuse to hire a candidate or terminate an employee for refusing to comply with such requests?
At-Will Employment
North Carolina is an at-will employment state. This means that, absent a specific law or an agreement to the contrary, an employer is not required to provide a reason for terminating an employee.
Drug Testing Employees and Job Candidates
In North Carolina, under the Controlled Substance Examination Regulation (“C.S.E.R.”), employer drug testing of job candidates or current employees is permitted. Refusal to comply with a request to submit to drug testing can be a fireable offence. However, an employee or job candidate may have a claim against his or her employer if the employer failed to follow the proper testing procedures.
For example, employers and prospective employers must first provide written notice to employees and job candidates, informing them of their rights regarding drug testing. This notice must be provided at or before the time of testing. Additionally, if the employer has at least 25 employees, the employer must pay the costs of the initial drug test. For job candidates, onsite or laboratory testing are permitted. However, for current employees, all testing must be performed at an “approved laboratory.” Generally, all individuals have the right to a follow-up test to confirm a positive drug test.
Independent of claims arising under the C.S.E.R., other claims may exist for current or prospective employees, including discrimination or defamation, based on the employer’s administration of drug testing protocols.
DNA Samples
At the federal level, the EEOC has ruled that employers may provide for voluntary genetic testing, if such testing is the part of an overall wellness program. Congress has proposed legislation that would allow employers to compel employees to submit to genetic testing as part of an overall wellness program. However, as the law currently stands, refusal to submit to genetic testing or otherwise participate in a voluntary wellness program is not grounds for termination or discrimination.
If you have questions regarding a civil litigation or employment dispute, or your rights and obligations under an employment contract, please give us a call at (704) 457-1010 to schedule a consultation. For more information regarding our firm, attorneys, and practice areas, please visit https://lindleylawoffice.com/.
