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West Virginia Enacts New Employee Drug Testing Law

Published by and on June 29, 2017

The West Virginia Safer Workplaces Act expands the ability for employers to conduct drug and alcohol testing, but implements stricter procedures and requirements.

The West Virginia Safer Workplaces Act expands the ability for employers to conduct drug and alcohol testing, but implements stricter procedures and requirements.

On April 26, 2017, Governor Jim Justice approved the West Virginia Safer Workplaces Act, a new law affecting employer drug testing practices. The act became effective July 7, 2017. Previously, West Virginia was one of the few states with no statute concerning drug testing in the workplace.

The Act is a response by the legislature to clarify the law following two West Virginia Supreme Court decisions. In the first decision, the Court held that employees have a right to privacy, and that drug testing current employees violated public policy except where the employer had a “good faith objective suspicion of an employee’s drug usage or where an employee’s job responsibility involves public safety or the safety of others.” Twigg v. Hercules Corp., 406 S.E.2d 52, 55 (W. Va. 1990). Following that decision, the Court held that the right of privacy does not extend to pre-employment drug testing, but expressed concern over the shrinking of the expectation of privacy by courts as a “slippery slope.” Baughman v. Wal-Mart Stores, Inc., 592 S.E.2d 824, 828 (W. Va. 2003). In sum, West Virginia’s common law permitted drug testing as part of the hiring process, random testing of current employees where it protected the safety of others, or where there was a reasonable suspicion of a current employee’s drug usage.

The West Virginia Safer Workplaces Act declares that it is the public policy of the state to promote the safety of individuals in the workplace by “recognizing the right of West Virginia’s employers to require mandatory drug testing, not only of applicants, but of current employees.” The Act permits employers to require current and prospective employees to submit to drug and alcohol testing. The Act applies to all private employers, regardless of the number of employees, but does not apply to employees covered by miner’s health, safety, and training drug testing statutory scheme, W. Va. Code §22A‐1A‐1, or West Virginia Alcohol and Drug‐Free Workplace Act, W. Va. Code §21‐1D‐1, which controls government contractors. “Drugs” is defined under the Act as any substance considered unlawful for non‐prescribed consumption or use under the federal Controlled Substances Act, 21 U.S.C. §812, and “alcohol” is defined as ethanol, isopropanol, or methanol.

Importantly, in order to conduct testing, the employer must implement a written testing policy. The written policy must state that it is a condition of employment for an employee to refrain from working with the presence of drugs or alcohol in his or her body. The policy must also include information regarding the existence and availability of any counseling, employee assistance, rehabilitation and/or other drug abuse treatment programs the employer offers, although employers are not required by the Act to offer any of these benefits. The written policy must be provided to all employees, and available for review by prospective employees.

The Act does not limit the purpose of the drug testing to situation involving suspicions or public safety, as the common law did. Instead, testing may be conducted for any “legitimate drug abuse prevention and/or treatment purposes,” including:

  • Deterrence or detection of possible illicit drug use or possession, on or off the job, or the abuse of alcohol or prescription drugs;
  • Investigation of possible individual employee impairment;
  • Investigation of accidents or incidents in the workplace or employee misconduct;
  • Maintenance of safety for employees and customers; or
  • Maintenance of productivity, quality of products or services, or security of property or information.

The Act outlines the procedures required to properly conduct drug and alcohol testing. Samples must be collected under reasonable and sanitary conditions, and any observer of the collection of urine samples must be of the same sex as the tested employee. Testing must occur during, or immediately before or after, a regular work period, and is considered on-the-clock work time. The employer must pay for all actual costs of testing, as well as provide current employees with transportation to testing if not at the employee’s normal work site. The employer may choose the type of sample to be collected. Collected samples must be properly documented, handled, and transported, including labeling to prevent misidentification of tested individual, and handled in accordance with reasonable contamination, chain-of-custody and confidentiality procedures. Tested individuals must be given the opportunity to voluntarily provide information relevant to testing, such as their current prescription medication use or medical information. All communications related to an employee or prospective employee’s test results received through the employer’s drug testing program are confidential communications.

Employees are permitted to challenge a positive result of the initial test result by having the split sample tested by a second laboratory. For this reason, a second, unopened sample must be retained in the event the employee elects to exercise their right conduct split sample testing. The employee must bear the cost of testing the split sample.

Upon a positive result, a second test to confirm the result must be taken prior to any adverse action against the employee. The confirmatory drug testing (not alcohol testing) must be conducted at an approved laboratory using a different testing method than the initial test. Only upon a confirmed positive drug or alcohol test, or upon the refusal to provide a testing sample, may an employer use a test result or test refusal as a valid basis for disciplinary action, including termination or refusal to hire. Employers are not prohibited, however, from taking disciplinary action related to drugs or alcohol usage by non-testing means.

Finally, where an individual brings a claim against an employer alleging an adverse action was taken against them based on a false positive test result, there will be a rebuttable presumption that the test result was valid if the employer complied with the provisions of the law. Further, the employer will not be held liable if its reliance on a false positive test result was reasonable and in good faith.

Welter Insight

Employers in West Virginia seeking to test current and prospective employees for drugs and alcohol must implement a written policy regarding their drug-free workplace program. The written policy must include all prescribed notices and testing procedures. The written policy should be distributed to all employees, and made available to all prospective employees. As a prudent policy, the policy should contain an acknowledgment form, the policy should be signed and dated by the employee, and retained in the employee’s personnel file. All testing should be conducted in accordance with the West Virginia Safe Workplaces Act, and no adverse employment actions should be taken against current or prospective employees based on the initial positive test result. All information regarding an employee’s test results is confidential information and should be shared with others only on a need-to-know basis.

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