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Drug testing in West Virginia, The Safer Workplace Act

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.

Drew M. Capuder
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