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West Virginia's new drug testing law takes effect on Friday

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Starting this Friday, West Virginia employers will have much more leeway to test their employees for illegal drugs- but only if they also institute new procedural safeguards. That is because this Friday, July 7th, marks the effective date for the West Virginia Safer Workplace Act.

Until Friday, most West Virginia employers may only administer drug tests in three instances: (1) When a prospective employee applies for work; (2) if an employee is performing safety-sensitive duties; and (3) if the employer has reasonable suspicion to believe that an employee is under the influence of illegal drugs or alcohol.

These limitations are the result of two decisions from the West Virginia Supreme Court: The 1990 case of Twigg v. Hercules Corp. and the 2003 case of Baughman v. Wal-Mart Stores, Inc.

In Twigg, the Court held that it ordinarily was "contrary to public policy" for a private employer "to require an employee to submit to drug testing" because the testing could be "an invasion of an individual's right to privacy." Despite that right of privacy, the Court held that public policy permitted drug testing if an employer had "reasonable good faith objective suspicion of an employee's drug usage" or if the "employee's job responsibility involves public safety or the safety of others."

In Baughman, the Court held that it was permissible for private employers to test all job applicants for illegal drugs. In the Court's opinion, there was a difference between drug testing current employees and drug testing job applicants: "[I]n the pre-employment context, it is apparent ... that a person clearly has a lower expectation of privacy." This lower expectation of privacy was due to the intrusive nature of the job application process, which often included background checks, medical examinations and interviewing references.

Though the Baughman decision permitted more drug testing by employers, the Court noted the need to protect an individual's right of privacy: "[T]he right to privacy is an individual right that should be held inviolate. To hold otherwise, under modern means of communication, hearing devices, photography, and other technological advancements, would effectively deny valuable rights and freedoms to the individual."

Times change and so does public policy. One distressing change in West Virginia has been the increase in illegal use of opioids. According to a recent report, 864 West Virginians died from an opioid overdose in 2016, which represents an increase of more than 17 percent from the previous year and makes the state's overdose death rate the highest in the country.

This change has not gone unnoticed by the West Virginia Legislature. Earlier this year the legislature enacted the West Virginia Safer Workplaces Act. The Act goes into effect this Friday, July 7, 2017.

This Act asserts that the legislature, and not the West Virginia Supreme Court, has the right to define public policy. In the legislature's opinion, "the right of privacy is outweighed by the public policy stated" in the Act "if an employer meets the requirements set forth" in the Act. W. Va. Code § 21-3E-3. In other words, the legislature is seeking to erase the restrictions set forth in the Twigg and Baughman cases.

The requirements of the West Virginia Safer Workplaces Act largely relate to notice and procedural safeguards. If those requirements are met, employers have very few restrictions on when they may require drug and alcohol testing. Below are highlights of the new Act.

Private employers may test for illegal drugs for any of these reasons:

  • "Deterrence and/or detection of possible illicit drug use, possession, sale, conveyance, or distribution, or manufacture of illegal drugs, intoxicants, or controlled substances in any amount or in any manner, on or off the job, or the abuse of alcohol or prescription drugs."
  • "Investigation of possible individual employee impairment."
  • "Investigation of accidents in the workplace or incidents of workplace theft or other employee misconduct."
  • "Maintenance of safety for employees, customers, clients or the public at large."
  • "Maintenance of productivity, quality of products or services, or security of property or information."

Drug and alcohol tests may only be scheduled as follows:

  • "Any drug or alcohol testing by an employer of employees shall occur during, or immediately before or after, a regular work period." The time spent being tested "is worked time," which means hourly employees must be compensated for that time.
  • An employer "shall pay all actual costs for drug and/or alcohol testing required by the employer of employees and prospective employees."
  • The employer must "provide transportation or to pay reasonable transportation costs to current employees if their required tests are conducted at a location other than the employee's normal work site."

Testing must follow certain protocols:

  • Observers of "the collection of urine samples shall be of the same sex as the employee."
  • Samples must be labeled "so as to reasonably preclude the possibility of misidentification of the person tested" and the samples must be handled in accordance with "reasonable chain-of-custody and confidentiality procedures.
  • Employees and applicants must have the opportunity to provide information which may be considered relevant to the test, such as the "identification of currently or recently used prescriptions or nonprescription drugs."
  • Positive test results must be confirmed. For drug tests, the confirmation must be "by use of a different chemical process than was used by the employer in the initial drug screen."
  • An employer may only take an adverse employment action based "on a confirmed positive drug or alcohol test."
  • An employee or job applicant may challenge the results of the initial test result by paying for a split sample to be tested by another laboratory.

Employers must also comply with these provisions:

  • Employers must distribute a written drug and alcohol testing policy to every employee who is tested and make the policy available to every applicant who is to be tested.
  • The employers' drug and alcohol testing must conform to the policy.
  • If requested "and/or as appropriate," employers must provide employees with "information as to the existence and availability of counseling, employee assistance, rehabilitation and/or other drug abuse treatment programs which the employer offers, if any."

West Virginia employers who wish to take advantage of the Act must ensure that both their written drug testing policies and their actual practices carefully track all provisions of the Act. Otherwise, they will not be subject to the immunities afforded by the Act. Employers should also carefully consider how they handle employees who test positive: Will those employees be suspended, fired, demoted or provided an opportunity to seek rehabilitation? The West Virginia Legislature has greatly expanded employers' power to test their employees; whether that power is exercised responsibly is up to the employers.

If you need to revise your drug testing policy or have questions about drug testing employees, please contact Steven L. Snyder, Senior Counsel at Jenkins Fenstermaker, PLLC. Steven practices labor and employment law 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 304.399.9707 or at sls@jenkinsfenstermaker.com.

THIS IS AN ADVERTISEMENT. It is presented for promotional, informational and/or educational purposes and should not be relied upon as legal advice. Jenkins Fenstermaker, PLLC, 328 8th Street, Huntington, WV 25701-2225. Phone: 866.617.4736 (toll free)

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