Category Archives: Drug testing

Drug testing, WV Safer Workplace Act

Drug testing in West Virginia, The Safer Workplace Act

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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).

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Drug testing, Privacy, WV Safer Workplace Act

Employee Drug Testing: Balancing Workplace Safety and Privacy

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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.

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