On April 26, 2017, West Virginia Governor Jim Justice signed into law the West Virginia Safer Workplace Act (the “Act”), which authorizes employers to drug test their workforce and take adverse employment actions for positive results. The Act represents a dramatic change in the privacy rights of employees, and nullifies years of case law interpreting the privacy rights of employees in the workplace with respect to drug testing programs. The Act is slated to go into effect on July 7, 2017.
Prior to the passage of the Act, the West Virginia judiciary took a very dim view of employee drug testing, viewing it as an unwarranted invasion of privacy. Accordingly, employer drug testing was governed by the West Virginia Supreme Court of Appeals’ decisions, Twigg v. Hercules Corp., 185 W. Va 155 (1990) and Baughman v. Wal-Mart Stores, Inc., 215 W. Va. 45 (2003), which stood for the proposition that current employees could only be drug tested when the employer possessed a “reasonable good faith objective suspicion of a current employee’s drug usage or where an employee’s job responsibility involves public safety or the safety of others.” Pursuant to this common law, employers were allowed to drug test applicants, who held a reduced expectation of privacy.
The Act provides, on a uniform basis, that “it is now lawful for an employer to test employees or prospective employees for the presence of drugs or alcohol . . . as a condition of continued employment or hiring.” In so doing, the Act declares “that the public policy of this state, in stark contrast to the determinations of the court in [Twigg and Baughman], is to advance the confidence of West Virginia workers that they are in a safe workplace and to enhance the viability of the workplace they labor in by recognizing the right of West Virginia’s employers to require mandatory drug testing not only of applicants but of current employees.” The Act provides that employers may, pursuant to a written policy, test employees and applicants under a variety of circumstances, such as an investigation of possible employee impairment, post-accident or regular or random tests for the purpose of maintaining the safety of employees, customers, clients or the public. Upon receipt of a positive test, an employer can take action against an applicant or employee, such as refusing to hire, requiring rehabilitative treatment or termination of employment.
But the Act does not stop there. It also protects employers from liability stemming from their drug testing policies. For instance, if a testing program is otherwise compliant with the Act, employers risk no liability for disciplining, suspending, firing, refusing to hire, or requiring enrollment in a drug rehabilitation program if an employee tests positive. The Act further provides that “[n]o cause of action is or shall be established for any person against any employer . . . based on the results of a ‘positive’ drug or alcohol test, or the refusal of an employee or job applicant to submit to a drug test.”
Although the Act grants employers broader rights to drug test their workforce, it also imposes some requirements on drug testing programs and policies. For instance, the Act requires that all drug testing policies be reduced to writing and that all employees and job applicants subject to testing receive a copy of said policy. In addition, the Act requires employers to “provide an opportunity for the employee . . . to voluntarily provide notification of any . . . currently or recently used prescription . . . drugs” in advance of a drug test. However, the Act stops short of protecting employees from adverse employment actions when lawful use of prescription medications causes a positive test result.
Employers in West Virginia who already drug-test their applicants and employees must ensure that their policies and procedures are in writing and fully compliant with the Act. Employers in West Virginia looking to implement a formal drug testing policy should carefully review the Act and tailor their policies to meet its requirements.