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MORE WEST VIRGINIA EMPLOYEES MAY SOON BE DRUG TESTED

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Employers in West Virginia may soon get more freedom to drug test their employees. That is the intent of the "West Virginia Safer Workplaces Act," which passed the House of Delegates on March 23, 2017, and is now awaiting action in the Senate.

This Act is designed to overturn restrictions set forth by the West Virginia Supreme Court. Under the Court's current interpretation of the law, employees enjoy the right of privacy and drug testing may violate that right depending on the circumstances. The Court has held that drug testing of a current employee is only permissible if the employee's job "involves public safety or the safety of others" or there is "reasonable good faith objective suspicion of an employee's drug usage." Those restrictions do not apply to job applicants, who may be required to submit to a drug test as a condition of employment.

The pending Act purports to permit employers to drug test current employees for a very wide variety of reasons, including: (1) "Deterrence and/or detection of possible illicit drug use ..."; (2) "Investigation of possible individual employee impairment"; (3) "Investigation of accidents in the workplace ..."; (4) "Maintenance of safety"; and even (5) "Maintenance of productivity...."

Based on the Senate's past votes, commentators expect this chamber will also vote to approve HB 2857. Since it only takes a simple majority of each chamber to override the governor's veto, it is very likely this Act will become the law in West Virginia.

Will the state's Supreme Court permit the Act to stand or strike it down as violating an employee's right of privacy? That may depend in large part on which employee is challenging the law. The Court's jurisprudence has already established that the right of privacy may wax or wane depending on an employee's duties.

Drug testing is already mandatory for many employees whose jobs may affect public safety, such as pilots, commercial truck drivers and construction workers on public improvement projects. The potential flaw in the pending Act is that there are really no restrictions on an employer's right to drug test its employees. Even a teetotaler with a lowly clerical job may be forced to take a drug test or lose his job. The Court may well hold that the Act goes too far - but then again, it might not.

The prudent employer will not rush to implement widespread drug testing of its current employees (unless those employees have safety sensitive positions). Instead, the employer will kick back, take a sip of a non-alcoholic drink, and wait and see what happens.

Steven L. Snyder practices labor and employment law with Jenkins Fenstermaker PLLC in Huntington, West Virginia. He has been trained as an arbitrator and as a mediator by the American Arbitration Association and has been appointed to the AAA's arbitration panel and mediation roster. You may contact Steven at 866.617.4736 (toll free) or at sls@jenkinsfenstermaker.com

THIS IS AN ADVERTISEMENT. Jenkins Fenstermaker, PLLC, 328 8th Street, Huntington, WV 25701-2225. Phone: 866.617.4736 (toll free)

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