Drug-Free Workplace Act Goes Into Effect in 3 Weeks

Friday, June 16, 2017 | 0

Legislation allowing employers to drug-test employees at will and fire them if they refuse to submit goes into effect in exactly three weeks. 

Under House Bill 2857, if an injured worker tests positive for drugs or alcohol or refuses to submit to a test, he forfeits workers' compensation indemnity benefits. He also forfeits unemployment benefits. 

Employers have broad license to drug-test employees, both prospective and current, under the bill. Its language, which will be written into state statute on July 7, specifies that testing "need not be limited to circumstances where there are indications of individual, job-related impairment" and can occur for virtually any reason. An employer can order these tests as long as it has distributed a written testing policy to all employees and abides by certain state-mandated testing criteria. 

Gov. Jim Justice signed the bill, dubbed the West Virginia Safer Workplaces Act, on April 27.

The Act declares that "the public policy of this state is to advance the confidence of West Virginia workers that they are in a safe workplace and to enhance the viability of the workplace they labor in by recognizing the right of West Virginia’s employers to require mandatory drug testing, not only of applicants, but of current employees."

It further provides that an employee's right to privacy "is outweighed by the public policy stated in this section."

Previous West Virginia Supreme Court of Appeals decisions have provided that it is legal for employers to require workers to submit to drug tests only if the employer has a "reasonable good faith objective suspicion of a current employee’s drug usage or where an employee’s job responsibility involves public safety or the safety of others," as the high court stated in Baughman v. Wal-Mart Stores Inc. (2003). Otherwise, requiring a current employee to submit to a drug test was an unwarranted invasion of privacy.

The corporate defense law firm of Spilman Thomas & Battle, which practices in West Virginia, warned employers that the testing programs authorized by the act will likely be subject to litigation. 

"The Supreme Court of Appeals of West Virginia has held that employees have a constitutional right to privacy that may be infringed upon by certain drug testing programs in the workplace. The Legislature, by this act, has announced that it is the public policy of West Virginia to allow employers to require drug testing of prospective and current employees," the firm wrote in an article about the 2017 West Virginia legislative session called "The Year of the Employer."

"Both positions are reasonable, and the issue likely will have to be decided by the Supreme Court of Appeals of West Virginia," the firm continued. "If you choose to implement a drug testing program pursuant to the act in early July 2017, be aware that there is a chance you could be the test case."

View HB 2857 here.