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Help Center - Drug Testing
This page offers a few questions and answers pertaining to drug testing. The information is based on a private West Virginia employer.
This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.
Questions
1. Can a private West Virginia employer have Random drug testing? Does anything change if you have a policy that states you do have random testing?
2. Can a private West Virginia employer do drug tests at the time of
hiring? Is a documented policy required if so?
3. If an employee came to work and appeared they were on drugs or it
was reported by another employee does that allow a private
West Virginia employer to request a drug test?
4. We are a private West Virginia employer that has employees which need to access
secure areas at other vendor locations. These vendors/secure areas require an individual to have a clearance badge before they are able to enter the location. In order to obtain a clearance badge one of the requirements is for them to have a clean drug test on file before they will issue a clearance badge. Are we able to require the employee to take the drug testing if it is necessary to obtain a clearance badge for them so that they may perform work at such locations.
Answers
1. Although we are not aware of a specific West Virginia statute that governs drug testing, a 2003 case decided by the WV Supreme Court held that it is contrary to the state's public policy for a private employer to require employees to submit to suspicionless drug testing (absent heightened safety concerns) since such testing portends an invasion of the individual's right to privacy. As such, we do not recommend that a private sector employer in WV seek to implement a random drug testing policy for employees. The case is available at http://www.state.wv.us/wvsca/docs/fall03/31312.htm for you to review.
2. Pre-employment drug testing of candidates differs from drug testing of current employees. WV Courts have held that prospective employees may be required to submit to drug testing, because in the pre-employment context, an individual's expectation of privacy is generally lower. If an employer seeks to implement a pre-hire drug testing policy, it should be uniformly applied and enforced to avoid discrimination claims (i.e., the employer should not seek to drug test some candidates and not others who are similarly situated). If you wish to go forward with a pre-employment drug testing protocol, we recommend that you have local counsel in WV assist in drafting a drug testing policy and procedure that meets the employer's objectives while remaining enforceable in that jurisdiction.
3. While suspicion-based drug testing is not, per se, unlawful in WV, an employer must have a clearly communicated policy that supports it, and be able to point to "well-grounded individualized suspicion ... analogous to the kind of probable cause necessary for a warrant [that] clearly outweighs the employee's important right to privacy" (see case citation above) before requiring an employee to submit to a suspicion-based drug test. As for candidates for employment or prospective employee, as noted in the response to the second part of the inquiry, the employer can conduct pre-employment testing as a matter of course. Note, though, that an employer does not need a drug test result to support a suspicion that an employee or candidate is under the influence of drugs. If the employer observes an employee or candidate in an impaired state or has other credible evidence that the individual may be under the influence of drugs, the employer can take appropriate action (i.e. disciplinary action as to an employee, or a decision to disqualify a candidate), even without a drug test, based solely on the individual's performance and/or conduct. In this regard, the employer's decision must be consistent with employer policy and practice in past situations, if any.
4. As noted, while drug testing is generally viewed as an invasion of privacy, in limited circumstances drug testing is permitted as we have noted above. To the extent there are specific heightened safety concerns associated with accessing the secure area for the position(s) in question, to our knowledge the employer would be within its rights in WV to mandate such employees take and pass a drug test to be badged to access the area. As this aspect of law in WV is very delicate, however, we strongly recommend that you consult with local counsel for specific guidance in developing a drug testing policy that is compliant without running afoul of any rights conferred upon employees in the private sector in that state.
Here is the excerpt on drug testing in WV:
In Twigg v. Hercules Corp., 2 West Virginia’s Supreme Court of Appeals ruled that it is contrary to public policy for a private employer to require employees to submit to drug testing because “such testing portends an invasion of an individual’s right to privacy.” The court recognized two exceptions to its rule, holding that drug testing by private employers does not violate public policy where it “it is based upon reasonable good-faith objective suspicion of an employee’s drug usage, or “where an employee’s job responsibility involves public safety or the safety of others.” (Emphasis added.)
Random testing should be limited to safety‐sensitive positions only.
In a later case, the court held that individuals in a pre-employment context have a lower expectation of privacy, and thus while the court “strongly affirm[ed] [its] holding in Twigg,”found that a private employer’s requirement of a pre-employment drug test did not impermissibly invade a prospective employee’s privacy.
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