Under North Carolina law, employees dissatisfied with a positive employer drug test result may seek retesting of a split sample. In a new case, the North Carolina Court of Appeals rejected a slander claim based on an employer’s assertion that the employee “failed” a drug test later overturned based on inconclusive results. The case, Losing v. Food Lion, L.L.C., was filed by a store manager who initially returned a urine sample deemed by the lab to have been substituted. After being terminated, the employee demanded a retest, which proved negative. Although Food Lion reinstated the employee, he sued for slander, claiming that Food Lion had told other employees that he had been terminated for failing a drug test.
The Court of Appeals rejected the slander claim, finding that Food Lion had established truth as a defense to the plaintiff’s claims. The plaintiff did in fact fail the drug test. The fact that the test had not been “concluded” through assessment of the split sample did not affect the basic truth to the communications made by Food Lion to other employees. Employers concerned about slander claims often forget that no matter how unfair or uncalled for, comments by managers are not slanderous if they are the truth. In this case, the plaintiff missed the statute of limitations for filing an invasion of privacy claim. Had he sued earlier, Food Lion could have faced a more serious risk of liability. Employee drug test results and the consequences of those results should be limited to managers with a specific need to know about the situation.