By Andrew Current
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Introduction

On April 26, 2017, West Virginia governor Jim Justice signed House Bill 2857 into law. This bill created a brand new drug testing law: The West Virginia Safer Workplaces Act. What makes this new law unique is how it combines provisions that are typical of mandatory drug testing laws with provisions that are typical of voluntary drug testing laws. It also sets itself apart in the way it interacts with and in some ways supersedes existing case law, workers’ compensation law, and unemployment compensation law in West Virginia.

Mandatory vs Voluntary Drug Testing Laws

Drug testing laws are usually divided into two categories: mandatory and voluntary. Mandatory drug testing laws apply for any employer conducting drug testing in a given state. Voluntary drug testing laws apply only for those employers who choose to comply. Usually this is because the voluntary law creates an incentives program to encourage employers to conduct drug testing in a certain way. Examples of these incentives include discounts on workers’ compensation insurance premiums or limited legal protection.

The West Virginia Safer Workplaces Act is certainly a mandatory drug testing law: “this article does not abrogate the right of privacy, including the right of an individual to be let alone and to keep secret his or her private communications, conversations and affairs, as stated in Roach v. Harper, 143 W. Va. 869, but rather determines that the right of privacy is outweighed by the public policy stated in this section if an employer meets the requirements set forth in this article.” In other words, when it comes to drug testing, an individual’s right to privacy may only be outweighed when an employer follows the provisions of the West Virginia Safer Workplaces Act. Hence, this is a mandatory drug testing law.

However, there are numerous incentives built into the new drug testing law that are reminiscent of a voluntary drug testing law. For example, if an employer follows the accuracy and fairness safeguards outlined in the law, he or she may qualify for a bar from being subjected to legal claims for acting in good faith on the results of a drug or alcohol test. Additionally, compliance with the West Virginia Safer Workplaces Act allows an employer to deny workers’ compensation or unemployment compensation claims if the injury or termination was related to a positive drug test result. Not only does this mandatory drug testing law offer limited legal protection, it goes beyond most voluntary drug testing laws and gives employers a way to deny WC and UC claims. All in the same law.

Existing Case Law in West Virginia

Since 1990, general workplace drug testing in West Virginia has been more or less regulated by Twigg vs. Hercules Corp. In that case, the Supreme Court of Appeals of West Virginia ruled that drug testing was only permitted when based upon reasonable suspicion and in safety-sensitive roles. However, the West Virginia Safer Workplaces Act specifically and explicitly contracts that requirement: “The collection and testing of samples … need not be limited to circumstances where there are indications of individual, job-related impairment of an employee or prospective employee” (West Virginia Code §21-3E-8[d]). This begs the question of which law will prevail… the public policy of the last 20+ years based upon Twigg vs. Hercules Corp. or the new public policy established in the West Virginia Safer Workplaces Act? Certainly the wording of this new law is drafted in a way to supersede the existing case law, but will it actually have that effect? Or will courts continue to make rulings based upon old public policy simply because that’s the way it’s always been done? These are questions that can only be answered with time.

Conclusion

West Virginia’s new drug testing law is unique to say the least. It remains to be seen how employers will take to it and how courts may respond to future legal challenges. However, with so many incentives on the table, from legal protection to savings on workers’ compensation, it is hard to argue against the West Virginia Safer Workplaces Act.

If you have questions about West Virginia’s Safer Workplaces Act, contact The Current Consulting Group, LLC (CCG) at 215-240-8204. Our knowledgeable and professional staff welcome the opportunity to work with you.

(C) 2017 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way full attribution to the author and copyright holder are required.

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