The South Carolina Supreme Court held that laboratories who perform workplace drug tests on behalf of employers owe a duty of care to the individuals who are tested and may be sued for negligence for failing to properly and accurately perform the drug tests and report the results. Shaw v. Psychemedics Corp., App. Case No. 2017-002538 (S.C. March 20, 2019).

The plaintiff was a former employee of BMW who was subjected to random drug tests by his employer. BMW contracted with a laboratory to test hair samples of employees for drugs. Plaintiff was selected for a random drug test and his hair sample tested positive for cocaine. Plaintiff was permitted to submit a second hair test to the laboratory and the second test also was positive for cocaine. Plaintiff was fired by BMW.

Plaintiff maintained that he was not a drug user. He filed an action against the laboratory, alleging negligence and negligent supervision. The laboratory argued that it did not owe a duty of care to Plaintiff and could not be sued. The district court certified this question to be answered by the South Carolina Supreme Court.

The South Carolina Supreme Court answered the question in the affirmative. Specifically, the Court concluded that there were several bases to support a finding that a laboratory may be sued for negligence by an employee who was drug tested, including: (1) the laboratory’s contractual relationship with the employer; (2) the fact that the employee would suffer a direct economic injury, such as loss of employment, if the laboratory was negligent in testing the specimen; and, (3) public policy considerations, i.e., there is a significant public interest in ensuring accurate drug tests because countless employees are required to undergo drug testing as a condition of their employment.

The Court noted that the consequences of an erroneous drug test result can be devastating to an employee who may be terminated and unable to find other employment. The laboratory, on the other hand, would effectively be immunized from liability if the Court held that there is no duty of care to the tested employee. Additionally, the Court stated that the recognition of a duty of care advances a major policy goal of tort law: deterrence. A drug testing laboratory is more likely to ensure accuracy in its testing process if it owes a duty of care to the tested individuals.

Finally, the Court was persuaded by the fact that courts in New York, Pennsylvania and Wyoming have all determined that a drug testing facility owes a duty of care to the person subject to testing.