West Virginia employers that may have hesitated in the past to implement and enforce robust drug and alcohol testing policies may now do so without fear of running afoul of prior state court decisions limiting employers’ flexibility to test thanks to the newly enacted West Virginia Safer Workplace Act. Through the act, which will go into effect on July 7, 2017, the state legislature has trimmed expansive privacy rights and cleared the way for certain employer actions relating to drug and alcohol testing.

Protections From and Limitations of Liability Under the Act

While it does not mandate that employers implement a drug and alcohol testing policy and/or program, the act does establish the legality of testing prospective and current employees and provides attractive liability protections and limitations for employers that conduct testing in compliance with the act’s provisions. For example, employers that establish a policy and testing program that complies with the act’s accuracy and fairness safeguards will be protected from claims arising from (a) actions the employer takes based on the results of a confirmed positive drug or alcohol test or an individual’s refusal to submit to a test; (b) failure to test for drugs or alcohol or for a specific drug or other controlled substance; (c) failure to test for, or if tested for, failure to detect, any specific drug or other substance, any medical condition, or any mental, emotional, or psychological disorder or condition; or (d) the termination or suspension of any substance abuse prevention or testing program or policy.

In addition, establishing and adhering to a policy in compliance with the act limits defamation, libel, slander, and damage to reputation causes of action against employers; bars liability for actions taken as a result of false negative tests (e.g., negligent retention claims); and limits liability for actions taken in reliance on a false positive tests in circumstances in which the claimant could show that the employer had actual knowledge that the result was false and ignored the true test result in disregard for the truth and/or with the willful intent to deceive or be deceived. 

Other benefits of implementing a compliant drug and alcohol testing program include limitations on unemployment insurance and workers’ compensation claims where the employer’s written policy puts employees on notice that it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body. In order to qualify for the limitations on unemployment and workers’ compensation liability, the written policy must also state that if an injured employee refuses to submit to a test, the employee forfeits eligibility for unemployment compensation benefits, and if injured, for indemnity benefits under the state’s workers’ compensation laws.

Requirement of a Written Policy

To be compliant with the act, an employer must have a written policy that is distributed to every current employee and made available to prospective employees to review. The act sets forth a broad array of permissible purposes for drug and alcohol testing current and prospective employees, defines safety sensitive employees, and provides for a number of legally permissible disciplinary and rehabilitative actions that may be taken as a result of a confirmed positive test or a refusal to submit to a test. Employers may want to address these matters in their written policies.

The act contains no requirement to provide counseling, employee assistance programs, rehabilitation, or any other drug abuse treatment programs. Employers that do so, however, must provide employees with information regarding those programs as requested or otherwise appropriate. As a best practice, this information can also be included in the employer’s written policy.

Testing Requirements Under the New Law

To ensure fairness and reliability, the act sets forth various requirements for testing procedures and the treatment of drug testing samples. Employers are required, among other things, to pay for testing (which must be done during, right before, or directly following a regular work period) and to compensate employees for time spent submitting to tests. If testing is done away from the worksite, the act requires employers to transport or pay for reasonable transportation to and from the testing site. 

Individuals also have certain rights under the testing procedures outlined in the act. For example, all positive tests must be confirmed by a second test. In addition, current and prospective employees have the right to voluntarily provide information relevant to the test, like the use of prescription drugs, which can be accomplished by setting up procedures for review of the test by a qualified medical professional. Finally, individuals who want to challenge the results of an initial sample test have the right, at their own expense, to have a split sample tested by another lab.

Continued Adherence to Other Applicable Drug and Alcohol Laws

Employers are still obligated to adhere to additional requirements under other state and federal drug testing statutes to which they are subject. For example, an employer that has employees subject to federal Department of Transportation’s drug and alcohol testing requirements must still adhere to those requirements.

Confidentiality Protections

Finally, employers must treat communications concerning drug and alcohol test results as confidential. Such information is expressly prohibited from being used or received in evidence, subject to discovery processes in litigation, or disclosed in any public or private proceeding, with the exception of actions against the employer under the act itself.

On balance, the act provides West Virginia employers an important tool in advancing safety and ensuring quality in the workplace. Employers may want to carefully review the requirements of the act in crafting a written policy and implementing testing procedures so as to ensure receipt of the maximum protections provided under the new law.