On March 21, 2019, the South Carolina Supreme Court answered a certified question that will impact third-party vendors under contract with South Carolina employers to conduct employee drug testing. In Shaw v. Psychemedics Corporation, the court held that drug-testing companies conducting tests on South Carolina employees owe a duty of care to those employees. Under Shaw, an employee may sue a drug testing company for negligence based on the company’s contractual relationship with the employer.

The court considered a number of factors in reaching this conclusion, including South Carolina public policy, the economic and personal impact of a mishandled drug test on an employee, and the current lack of redress by an employee for the negligent handling of a drug screen.

As a result of Shaw, drug testing companies testing employees in South Carolina should review their processes and procedures to determine vulnerabilities for mistakes in the processing of a drug screen. Such mistakes are likely to form the basis of an employee’s negligence claim. Drug-testing companies also should consider additional training of employees in order to demonstrate that they took appropriate steps to assure compliance with state testing requirements.