I recently wrote an article about workplace drug-testing, and this article takes a deeper dive into a relatively new law in West Virginia on the issue.
The West Virginia Safer Workplace Act (the “Act”), W. Va. Code § 21–3E‑1 et seq, passed in 2017, represents a significant development in the state’s approach to workplace drug and alcohol testing. Enacted to provide employers with greater latitude in ensuring safe and productive work environments, the Act addresses several legal precedents and attempts to establish clear guidelines for both employers and employees. This article looks into the key aspects of the Act, including its impact on prior legal decisions, the procedures it mandates, protections it offers to employers, and the rights it affords to employees.
1. Impact on Prior Legal Decisions, Specifically Harless
Before the Act’s enactment, West Virginia’s stance on employee drug testing was largely shaped by court decisions emphasizing employee privacy rights. The West Virginia Supreme Court recognized the right of privacy in Roach v. Harper, 143 W. Va. 869, 105 S.E.2d 564 (1958). A pivotal case in this context is Harless v. First National Bank in Fairmont, 246 S.E.2d 270 (W. Va. 1978), where the West Virginia Supreme Court recognized a cause of action for wrongful discharge when an employee is terminated for reasons that contravene substantial public policy. This decision laid the groundwork for scrutinizing employer practices, including drug testing, that might infringe upon employee rights, such as in Twigg v. Hercules Corp., 185 W. Va. 155, 406 S.E.2d 52 (1990) (reiterating privacy right based on Roach in Harless claim precluding termination of employee who refused post-employment drug test).
The Safer Workplace Act limited existing common law rulings related to drug and alcohol testing, especially the Twigg decision. By doing so, the Act provides a statutory framework that clarifies and expands the circumstances under which employers can conduct drug and alcohol testing, reducing ambiguity and potential legal challenges rooted in prior case law.
At the same time, the Act did not eliminate the right of privacy recognized in Roach and did not limit some of the Harless-doctrine decisions on drug testing (and on other privacy-based issues, like polygraph testing). The Act stated: “this article does not abrogate the right of privacy, including the right of an individual to be let alone and to keep secret his or her private communications, conversations and affairs, as stated in Roach v. Harper, [143 W.Va. 869,] 143 W. Va. 869 [(1958)], but rather determines that the right of privacy is outweighed by the public policy stated in this section if an employer meets the requirements set forth in this article.” W. Va. Code 21–3E‑3 (emphasis added).
So the issue becomes what procedures for workplace drug testing are set out in the Act, so that the employer is protected from legal claims where the drug test leads to adverse employment decisions?
2. Procedures for Employee Drug Testing Under the Act
The Act outlines specific procedures that employers must follow to conduct lawful drug and alcohol testing (§21–3E‑7):
- Written Policy Requirement: Employers must establish a written policy detailing the specifics of their drug and alcohol testing program. This policy should be provided to all employees and made available to prospective employees.
- Types of Testing Permitted: Employers are authorized to require testing under various circumstances, including (§21–3E‑8):
- Pre-employment: As a condition of hiring.
- Reasonable Suspicion: When there is a reasonable, good faith, objective suspicion of an employee’s drug or alcohol use.
- Random Testing: On a random selection basis, without the need for individualized suspicion.
- Post-Accident: Following certain workplace accidents.
- Return-to-Duty and Follow-Up: After an employee returns to work following a violation of the employer’s substance abuse policy.
- Collection and Testing Procedures: The Act mandates that sample collection and testing be conducted in a manner that ensures accuracy and fairness, adhering to established scientific standards.
- Confidentiality: Employers are required to maintain the confidentiality of all drug and alcohol test results, with disclosure limited to those with a legitimate need to know.
3. Employer Protections Against Lawsuits
One of the Act’s primary objectives is to shield employers from legal liability when they act in good faith based on the results of drug or alcohol tests (§21–3E-11). Employers who implement a compliant drug-free workplace program are granted immunity from legal claims arising from their actions related to testing, provided they adhere to the Act’s notice, education, and procedural requirements.
This immunity encompasses protections against claims for (§21–3E-13):
- Defamation.
- Invasion of privacy.
- Wrongful discharge.
- Discrimination.
The logic of the Act is that, by following the Act’s provisions, employers can make employment decisions based on test results without fear of legal repercussions, thereby promoting safer workplaces.
4. Employee Rights to a Second Drug Test
The Act acknowledges the potential for erroneous test results and provides employees with the right to request a confirmation test(§21–3E‑7):
- Confirmation Testing: If an employee receives a positive test result, they may request a second test at a laboratory of their choosing, provided it is certified and meets the Act’s standards. The employee bears the cost of this confirmation test.
This provision ensures that employees have a mechanism to challenge potentially inaccurate results, safeguarding their employment and reputation.
5. Employee Legal Claims for Employer Non-Compliance
While the Act offers protections to employers, it also holds them accountable for adhering to its procedures (§21–3E-12):
- Cause of Action: Employees may have grounds for legal action if an employer fails to comply with the Act’s requirements, such as not having a written policy, not providing proper notice, or not following mandated testing procedures.
- Remedies: Potential remedies for employees may include reinstatement, back pay, and compensation for damages incurred due to the employer’s non-compliance.
This balance ensures that while employers have the tools to maintain safe workplaces, employees are protected from arbitrary or unjust testing practices.
6. Restatement of Employee Privacy Rights
The Act seeks to balance workplace safety with individual privacy rights:
- Privacy Considerations: While the Act permits broader testing, it emphasizes the need for confidentiality and respect for employee privacy. Test results are to be kept confidential, and testing procedures must be conducted with due regard for the dignity of employees.
- Limitations on Testing: The Act does not mandate testing but provides a framework for those employers who choose to implement it. This ensures that testing is not conducted arbitrarily and that employee privacy is not unduly infringed upon.
By incorporating these considerations, the Act aligns with prior court decisions that underscore the importance of privacy, ensuring that employee rights are not overshadowed by workplace safety initiatives.
Conclusion
The West Virginia Safer Workplace Act represents an approach to balancing the interests of employers and employees concerning drug and alcohol testing. By superseding prior legal precedents, establishing clear procedures, providing legal protections to employers, and safeguarding employee rights, the Act aims to foster safer and more productive workplaces while respecting individual liberties.
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