HR Alert

West Virginia Enacts Comprehensive Drug and Alcohol Testing Law

Provisions Effective July 7, 2017

Under the West Virginia Safer Workplaces Act, effective July 7, 2017, an employer may test employees or prospective employees for the presence of drugs or alcohol (in accordance with the provisions of the law) as a condition of continued employment or hiring. However, employers must adhere to the accuracy and fairness safeguards outlined in the law.

Testing Policy Requirements
The West Virginia Safer Workplaces Act provides that an employer's testing or retesting for the presence of drugs or alcohol must be carried out within the terms of a written policy which has been distributed to every employee subject to testing, and is available for review by prospective employees.

Employers must provide employees, when requested and/or as appropriate, with information as to the existence and availability of counseling, employee assistance, rehabilitation and/or other drug abuse treatment programs which the employer offers, if any. However, the employer is not required to offer any of these benefits.

Within the terms of the written policy, an employer may require the collection and testing of samples for, among other legitimate drug abuse prevention and/or treatment purposes, the purposes listed in the statute (Sect. 21-3E-8(c)). All communications received by an employer relevant to employee or prospective employee drug or alcohol test results and received through the employer's drug testing program are confidential communications.

Upon receipt of a confirmed positive drug or alcohol test result which indicates a violation of the employer's written policy, or upon the refusal of an employee or prospective employee to provide a testing sample, an employer may use that test result or test refusal as a valid basis for disciplinary and/or rehabilitative actions, which may include, among other actions, termination or other actions listed in the law (Sect. 21-3E-9(1)).

Employer Testing and Notice Requirements
If a drug or alcohol is found to be present in the employee's system at a level proscribed by the employer's policy, the employee may be terminated and forfeits his or her eligibility for unemployment compensation benefits, and, if injured at the time of the intoxication, indemnity benefits under the workers' compensation laws.

However, the employer's drug-free workplace program must notify all employees 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 and that policy must also state that if an employee refuses to submit to a test for drugs or alcohol, that employee forfeits eligibility for unemployment compensation benefits, and if injured, for indemnity benefits under the workers' compensation laws. Employers who do not notify their employees of this condition of employment waive their right to assert that eligibility for benefits is entirely forfeited.

Among other things, the law also contains certain requirements regarding the collection of samples, scheduling of tests, and testing procedures. Click here to read the text of the law.


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