(304) 523-2100 Huntington, WV

Labor & Employment
Contact Today
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Jenkins Fenstermaker, PLLC

325 Eighth Street

Huntington, WV 25701-2225

Phone (304) 523-2100

Toll Free (866) 617-4736

Drug Testing

Tristate Drug Testing Attorney

A Tristate Drug Testing Attorney Can Explain Your Rights and Responsibilities

Employers require employee drug testing for a variety of reasons: to avoid accidents, to reduce the chance of having drugs on the premises, to decrease the risk of liability exposure, and to help promote and maintain employees’ productivity.

Despite laudable purposes, drug testing employees in WV, KY, and OH impacts the employees’ privacy rights. As a result, employers need to know where the law draws the line on testing and the consequences of a failed test for an employee.

Establishing a legally compliant drug testing policy is not a task to put off or to delegate. A tristate drug testing attorney can help you protect your investment in your business, your workplace, and your employees.

Employee Drug Testing Policies in WV, KY, and OH

In 2017, partly in response to the explosion of opioid addiction, West Virginia enacted the West Virginia Safer Workplaces Act to give employers broader rights to test employees while also protecting employee privacy. The Act allows random drug testing and requires policies to be in writing and distributed to employees and prospective employees. 

The Safer Workplaces Act’s provisions detail the rights of both employers and employees. Employers who follow the strict requirements of the act may be immune from certain legal claims where the employer acted in good faith on the basis of test results. 

In some cases, one benefit of a drug testing policy may be reduced workers’ compensation insurance premiums. In Kentucky, Kentucky Revised Statute § 304.13-167 provides for a credit for certified drug-free work places. The specific requirements for certification include a drug testing policy that includes a urine test for specified drugs. 

The Ohio Fair Employment Practices Law prohibits discrimination on the typical bases: color, race, religion, national origin, age, ancestry, disability, and sex. That law allows employers to prohibit illegal drug use and to drug test employees and exempts from its protections current drug users. However, in certain circumstances, some former drug users may find protection under the disability language of the law.

What About Medical Marijuana?

The expanding acceptance of medical marijuana has the potential to further complicate the employee drug testing landscape. In 2017, the West Virginia Legislature passed the West Virginia Medical Cannabis Act, decriminalizing the use of medical marijuana obtained from approved dispensaries for the treatment of specified medical conditions. The WV act protects employees certified for medical marijuana use from discrimination based on the permitted marijuana usage.

Ohio has also enacted a medical marijuana law, making it legal for residents to purchase marijuana for medical needs. However, the Ohio legislature specifically recognizes employer’s rights regarding testing employees for marijuana

In addition to permitting testing, the Ohio law allows employers to discharge employees for medical marijuana use. Termination under those circumstances would be “for cause,” making the former employee ineligible for unemployment compensation benefits. 

Employers need to understand how the medical marijuana laws and other employee drug testing laws in WV, KY, and OH work together and how they will be enforced. Following these nuances requires more than most employers can handle alone.

Employee Drug Testing Policies under Federal Laws

In addition to complying with state laws, a drug testing policy and the actions an employer takes following an employee’s positive drug test must comply with federal laws. Examples of relevant federal laws include the Occupational Health and Safety Act, the Americans with Disabilities Act (ADA), and the Health Insurance Portability and Accountability Act (HIPAA).

For example, OSHA regulation 29 C.F.R. § 1904.35 prohibits retaliating against employees for reporting accidents. Under that regulation, post-incident drug testing must not be used in a retaliatory manner. 

The ADA prohibits discrimination against drug addicts but generally excludes active drug users from protection.

And HIPAA imposes certain authorization and notice requirements before medical care providers covered by the act release drug test results to employers.

Consult a Tristate Drug Testing Attorney Early

Not surprisingly, employers have difficulty navigating the drug testing laws on their own. Even slight changes in drug testing laws in the state where your business has employees may necessitate a change in your employee drug testing policies and practices.

A tristate drug testing attorney at Jenkins Fenstermaker, PLLC in Huntington or Clarksburg can help you establish and maintain fair and compliant written policies and practices that balance your right to maintain a secure, productive workplace with your employees’ privacy rights. To speak to a labor and employment attorney about the employee drug testing laws in WV, KY, or OH, use our online contact form or call (304) 523-2100 or toll-free at (866) 617-4736.