Drug test­ing in the work­place is a con­tro­ver­sial issue. Employ­ers want to main­tain a safe and pro­duc­tive work envi­ron­ment, but employ­ees have con­cerns about pri­va­cy and fair­ness. The law tries to strike a bal­ance between these inter­ests, but it’s not always clear-cut. So, what are the rules sur­round­ing drug test­ing in employ­ment, and how do they apply in West Virginia?

When Can Employers Require Drug Testing?

Employ­ers have a legit­i­mate inter­est in ensur­ing a drug-free work­place, par­tic­u­lar­ly in safe­ty-sen­si­tive indus­tries. While fed­er­al law doesn’t require drug test­ing for most employ­ees, some sectors—like trans­porta­tion and aviation—are sub­ject to manda­to­ry test­ing under reg­u­la­tions from the Depart­ment of Trans­porta­tion (49 C.F.R. Part 40).

In gen­er­al, pri­vate employ­ers can require drug test­ing under the fol­low­ing circumstances:

• Pre-employ­ment test­ing: Many employ­ers require appli­cants to pass a drug test before hiring.
• Ran­dom test­ing: Some indus­tries con­duct ran­dom drug test­ing, espe­cial­ly for safe­ty-sen­si­tive positions.
• Rea­son­able sus­pi­cion test­ing: If an employ­er has rea­son to believe an employ­ee is under the influ­ence, test­ing may be justified.
• Post-acci­dent test­ing: Many employ­ers require test­ing after work­place accidents.
• Return-to-duty test­ing: Employ­ees return­ing from reha­bil­i­ta­tion may be sub­ject to fol­low-up testing.

How­ev­er, drug test­ing poli­cies must be clear­ly com­mu­ni­cat­ed and applied con­sis­tent­ly to avoid claims of discrimination.

Employee Rights and Limitations

Employ­ees have some legal pro­tec­tions against drug test­ing, but those pro­tec­tions vary depend­ing on the cir­cum­stances. Under the Amer­i­cans with Dis­abil­i­ties Act (ADA), employ­ers can­not dis­crim­i­nate against employ­ees recov­er­ing from addic­tion, but they can pro­hib­it the use of ille­gal drugs (42 U.S.C. § 12114(a)).

In West Vir­ginia, the West Vir­ginia Safer Work­place Act (W. Va. Code § 21–3E‑1 et seq.) allows employ­ers to con­duct drug test­ing but sets guide­lines for how it must be done. Employ­ers must:

• Pro­vide writ­ten notice of their drug test­ing policy.
• Use reli­able test­ing methods.
• Give employ­ees an oppor­tu­ni­ty to explain a pos­i­tive result.
• Main­tain con­fi­den­tial­i­ty of test results.

Employ­ees who believe they were wrong­ly ter­mi­nat­ed due to a drug test may have legal recourse under state or fed­er­al law, par­tic­u­lar­ly if the employ­er vio­lat­ed test­ing pro­ce­dures or tar­get­ed employ­ees unfairly.

Medical Marijuana in the Workplace

West Vir­ginia legal­ized med­ical mar­i­jua­na in 2017, but that doesn’t mean employ­ees can use it freely at work. Under the West Vir­ginia Med­ical Cannabis Act , W. Va. Code § 16A-15–4 (“WVMVA”), employ­ers are not required to accom­mo­date mar­i­jua­na use in the work­place. Employ­ees can still be dis­ci­plined or fired for using med­ical mar­i­jua­na on the job or being impaired while working.

How­ev­er can­not dis­crim­i­nate against an employ­ee because they are a med­ical cannabis patient. How­ev­er, this pro­tec­tion is lim­it­ed and does not apply if the employ­ee is under the influ­ence at work or if their job involves safe­ty-sen­si­tive functions.

Key Employment Provisions of the Medical Cannabis Act

1. Non-Dis­crim­i­na­tion Pro­tec­tion
   The WVMCA pro­hibits employ­ers from dis­charg­ing, refus­ing to hire, or oth­er­wise dis­crim­i­nat­ing against an indi­vid­ual sole­ly because they are cer­ti­fied to use med­ical cannabis. 
   • W. Va. Code § 16A-15–4(b) states:“No employ­er may dis­charge, threat­en, refuse to hire or oth­er­wise dis­crim­i­nate or retal­i­ate against an employ­ee regard­ing an employee’s com­pen­sa­tion, terms, con­di­tions, loca­tion, or priv­i­leges sole­ly on the basis of such employee’s sta­tus as an indi­vid­ual who is cer­ti­fied to use med­ical cannabis.”
2. Excep­tions – When an Employ­er Can Take Action Despite the above pro­tec­tion, an employ­er may dis­ci­pline or dis­charge an employ­ee if: 
   • The employ­ee is under the influ­ence of med­ical cannabis at work or dur­ing work hours (W. Va. Code § 16A-15–4©).
   • The employee’s med­ical cannabis use pos­es a safe­ty risk or vio­lates fed­er­al law, such as DOT reg­u­la­tions (W. Va. Code § 16A-15–4(d)).
   • The employee’s role requires drug test­ing under fed­er­al law (W. Va. Code § 16A-15–4(e)).
   • The employ­er has a drug-free work­place pol­i­cy, and cannabis use (even med­ical) would vio­late com­pa­ny policies.
3. What an Employ­ee Must Do to Be Protected
   • Obtain and main­tain a valid med­ical cannabis cer­ti­fi­ca­tion from the West Vir­ginia Depart­ment of Health and Human Resources.
   • Dis­close their sta­tus if required under work­place drug poli­cies (but employ­ers may still take action if drug use is pro­hib­it­ed in the workplace).
   • Avoid using or being under the influ­ence at work—there is no pro­tec­tion for on-the-job use or impairment.
   • Ensure their job is not safe­ty-sen­si­tive—many indus­tries, par­tic­u­lar­ly those reg­u­lat­ed by fed­er­al agen­cies (e.g., trans­porta­tion, min­ing, health­care), can still pro­hib­it med­ical cannabis use even out­side of work.

That said, employ­ers must be cau­tious when deal­ing with med­ical mar­i­jua­na users. If an employ­ee is using cannabis to treat a dis­abil­i­ty, there could be poten­tial claims under the ADA or West Vir­ginia Human Rights Act (W. Va. Code § 5–11‑9). Employ­ers should engage in an inter­ac­tive process to deter­mine rea­son­able accom­mo­da­tions where applicable.

Best Practices for Employers

To avoid legal pit­falls, employ­ers should:

• Devel­op a clear drug test­ing pol­i­cy and dis­trib­ute it to all employees.
• Fol­low state and fed­er­al laws on drug test­ing and accommodation.
• Ensure con­sis­ten­cy in test­ing pro­ce­dures and dis­ci­pli­nary actions.
• Train super­vi­sors on rec­og­niz­ing impair­ment and han­dling drug-relat­ed issues fairly.
• Con­sid­er med­ical mar­i­jua­na poli­cies care­ful­ly to avoid dis­crim­i­na­tion claims.

What Employees Should Know

Employ­ees should:

• Under­stand their employer’s drug test­ing pol­i­cy before accept­ing a job.
• Be aware of their rights under state and fed­er­al law.
• Dis­close med­ical mar­i­jua­na use if it may affect work­place poli­cies, but also know their employ­er is not required to accom­mo­date it.
• Chal­lenge unfair test­ing if they believe their rights were violated.

Conclusion

Work­place drug test­ing is a com­plex issue that bal­ances safe­ty and employ­ee rights. Employ­ers must nav­i­gate state and fed­er­al laws care­ful­ly, while employ­ees should under­stand their rights and respon­si­bil­i­ties. By hav­ing clear poli­cies and ensur­ing fair­ness, work­places can main­tain safe­ty with­out unnec­es­sary legal conflicts.

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Drew M. Capuder

Attorney at Capuder Fantasia PLLC

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 30 years of experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261.

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