On April 26, 2017, West Virginia Governor Jim Justice signed into law the Safer Workplace Act (HB 2857). This law supersedes judicial precedent permitting employees to sue their employer when they are required to cooperate with a drug or alcohol test under certain circumstances.
Under prior law, employers were only permitted to drug test employees in two situations. First, when the employer had a reasonable suspicion the employee was under the influence of alcohol, drugs and/or controlled substances. Reasonable suspicion meant suspicion based on specific objective facts and reasonable inferences from those facts in light of experience that clinical testing will provide evidence of substance abuse. Second, when the employee was in a safety-sensitive position. These restrictions did not apply to applicants for employment. This standard created confusion for employers about what was “safety sensitive” and what was a “reasonable suspicion.” This confusion is eliminated by the new bill to ensure all employees have a safer work environment.
The Safer Workplace Act permits employers to drug test current employees with greater latitude where the employer has created a testing policy and the employee being tested had actual knowledge of the policy. The law still limits the means and methods by which testing can be conducted and has certain specific notice, education and testing requirements. For instance, the Act requires, “Testing or retesting for the presence of drugs or alcohol by an employer shall be carried out within the terms of a written policy which has been distributed to every employee subject to testing, and is available for review by prospective employees.” An employer cannot be held liable to an employee for failure to have such a policy.
It is unclear how this law will be interpreted by the Supreme Court of Appeals of West Virginia. If you have any questions on how this law will be applied and what changes should be made to your current drug testing policy, please contact Mark Carter or Katherine Capito at Dinsmore.