As noted in our June 2017 Employment Law Letter, the West Virginia Legislature passed the West Virginia Safer Workplaces Act. The new law, which went into effect on July 7, 2017, generally expands the circumstances under which employers may conduct drug and alcohol testing, with some important limitations. If your business conducts drug or alcohol testing, now is a good time to revisit your policy and consult with your attorney to ensure that it is compliant with the new law.  Here, we will summarize the new law, including what it permits and what it prohibits.

Applicability

The Safer Workplaces Act applies to most private employers, even those with just one employee. Certain employers that are subject to other statutes regarding testing are not covered by the new law, for example, public improvement contractors and coal mine operators.  If an employer must perform drug testing under another statute, those other requirements still apply.

Reasons for Testing

Under the Safer Workplaces Act, employees and job applicants may be tested for the presence of drugs and alcohol as a condition of continued employment or hiring. Before the Act, employees could be tested only if a reasonable suspicion existed to justify the test or if the employee held a safety sensitive position.  Now, drug and/or alcohol testing may be performed for any of the following reasons:

(1) Deterrence and/or detection of possible illicit drug use, possession, sale, conveyance, or distribution, or manufacture of illegal drugs, intoxicants, or controlled substances in any amount or in any manner, on or off the job, or the abuse of alcohol or prescription drugs;

(2) Investigation of possible individual employee impairment;

(3) Investigation of accidents in the workplace or incidents of workplace theft or other employee misconduct;

(4) Maintenance of safety for employees, customers, clients, or the public at large; or,

(5) Maintenance of productivity, quality of products or services, or security of property or information.

The new law states that testing may occur even where there are no indications of individual, job-related impairment. Therefore, the new law generally expands an employer’s ability to test employees.

Limitations

Despite the general expansion of the circumstances when testing is lawful, there are important limitations to an employer’s ability to test applicants and employees. Those limitations are as follows:

Written Policy – Importantly, testing (or retesting) of employees or job applicants for the presence of drugs or alcohol must be done within the terms of a written policy that has been distributed to every employee subject to testing and that is available for review by all job applicants.  Therefore, if you want to avoid liability for drug or alcohol testing, you must have a written policy, and you must only test within the limits of your written policy. 

Adverse Employment Actions – Also importantly, under the new law, no adverse employment action may occur before confirmatory drug testing, using a different chemical process than is used in the initial drug screen and which has been conducted at a laboratory that is either certified by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration or approved by either the U.S. Department of Health and Human Services under the Clinical Laboratory Improvements Act or the College of American Pathologists.  In other words, if you do an initial drug or alcohol screen that indicates that the applicant or employee tested positive for a prohibited substance, you may not take an adverse employment action until a laboratory has confirmed the test result.  An adverse employment action includes, but is not limited to, refusal to hire, discharge, or unpaid suspension.  Therefore, if an initial test comes back positive, you must wait for a laboratory to confirm the results before you take any adverse employment action against the applicant or employee.

Split Samples – If the laboratory confirms a positive test result (indicating the presence of a prohibited substance), the employee or job applicant has the right, at his or her own cost, to have a “split sample” sent to a second laboratory to be tested.  The split sample is collected at the same time as the primary specimen, which is tested by the first laboratory.  The first laboratory receives the split sample at the same time it receives the primary specimen, but it retains the split sample unopened unless and until the employee or applicant requests that it be sent to a second laboratory for testing.

Payment for Testing – The employer must pay all actual costs for drug and/or alcohol testing that the employer requires of employees and job applicants.  The one exception is for testing of a split sample.

Compensation to Applicants/Employees – Testing is considered to be worked time for purposes of compensation and benefits.  

Timing – Employees may be tested only during, or immediately before or after a regular work period.

Testing Off-Site – If testing occurs away from the work site, the employer must either provide transportation or pay reasonable transportation costs.

Collection of Samples – Collection of samples must be performed under “reasonable and sanitary” conditions.  If urine is being collected as the sample and someone is assigned to observe the sample collection, the observer must be of the same sex as the employee or applicant.  Each sample must be labelled to preclude misidentification.  Employers may require that the employee provide reliable identification to the person collecting the samples.

Opportunity to Provide Information – The employee or applicant must be given an opportunity to voluntarily provide notification of any information that may be relevant to the test.  For example, an employee must be allowed to identify currently or recently used prescription or nonprescription drugs or other relevant medical information.

Provision of Information to Employees – Employers must provide employees, “when requested and/or as appropriate,” with information regarding the existence and availability of counseling, employee assistance, rehabilitation, and/or other drug abuse treatment programs that the employer offers, if any.  While employers are required to provide this information, employers are not required to offer any of these benefits.

Confidentiality – The employer may not use or disclose communications relevant to an individual’s test results except in a proceeding related to the Safer Workplaces Act.

Permissible Actions Given a Confirmed Positive Test

If a laboratory-confirmed positive drug or alcohol test result indicates a violation of a written policy, or if the employee or job applicant refuses to provide a testing sample, then the employer may take disciplinary and/or rehabilitative action.  The Safer Workplaces Act specifically provides that the actions an employer may take include:  (1) requiring an employee to enroll in an employer-provided or approved rehabilitation, treatment, or counseling program, which may include additional drug and/or alcohol testing; (2) suspending the individual with or without pay; (3) discharging the employee; (4) refusing to hire the applicant; (5) other adverse employment action that accords with the employer’s written policy and procedures, including collective bargaining agreement provisions; or (6) transfer, reassignment, or discharge of an employee from a safety-sensitive position (in accord with any applicable contractual provision).

The Bottom Line

The Safer Workplaces Act generally expands employers’ abilities to test job applicants and employees, but there are several new and important limitations. If you haven’t already, break out your testing policy and ensure that it complies with the new law.