Drug testing - West Virginia

Drug testing

Under the West Virginia Safer Workplace Act, employers may require mandatory drug testing of applicants and employees. The act provides liability protections to employers that conduct testing in compliance with the act. Under the act, testing must conform to comprehensive requirements. Specific testing procedures must be followed and positive test results must be confirmed.

Employers that require drug tests must adopt and publish a written drug-testing policy. The policy must be distributed to every employee subject to testing.

An employer must pay the actual costs of required drug and/or alcohol testing for employees and applicants. If an employee is being tested at a site outside the normal work site, the employer must provide transportation or pay for transportation costs.

Regarding the scheduling of tests, the act requires that testing occur during, or immediately before or after, a regular work period. Testing is work time for purposes of compensation and benefits for current employees.

Within the terms of the written policy, an employer may test under a variety of circumstances. These include:

• Deterrence or detection of possible illicit drug use, possession, or manufacture of illegal drugs, or the abuse of alcohol or prescription drugs;
• Investigation of possible individual employee impairment;
• Investigation of accidents in the workplace or incidents of workplace theft or other employee misconduct;
• Maintenance of safety for employees, customers, clients, or the public;
• Maintenance of productivity or quality, or security of property or information.

Upon receipt of a confirmed positive drug or alcohol test which indicates a violation of an employer’s written policy, or upon refusal of an employee or applicant to provide a testing sample, an employer may use the test result or refusal as a basis for disciplinary and/or rehabilitative actions. These actions can include suspension, termination, or the requirement to attend an approved rehabilitation or treatment program.

If the employee is in a safety sensitive position, the employer may permanently remove the employee from the sensitive position and transfer or reassign the employee to an available nonsensitive position with comparable pay and benefits, or may take other action, including termination, consistent with the employer’s policy for a confirmed positive drug or alcohol test, provided there are no contractual provisions that prohibit such action.

All communications received by an employer relating to drug or alcohol test results are confidential communications. They may not be used in evidence, obtained in discovery, or disclosed in any public or private proceeding, except a proceeding related to an action taken by a employer under the act.

Unemployment compensation

West Virginia’s unemployment compensation law provides that an employee may be disqualified from receiving unemployment compensation benefits if the individual is discharged for misconduct for reporting to work in an intoxicated condition, being intoxicated while at work, for reporting to work under the influence of any controlled substance, or for being under the influence of any controlled substance while at work.

Under the West Virginia Safer Workplace Act, if an employer implements a drug-free workplace program which includes notice, education, and procedural requirements for testing for drugs and alcohol, an employer may require the employee to submit to a drug or alcohol test. 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 forfeits eligibility for unemployment benefits. However, the employer’s drug-free workplace program must notify the all employees that it is a condition of employment for an employee to refrain from working with the presence of drugs or alcohol in the body. The policy must state that if an injured employee refuses to submit to a test for drugs or alcohol that employee forfeits eligibility for unemployment compensation benefits.

Workers' compensation

West Virginia’s workers’ compensation law allows for the denial of workers’ compensation benefits if the employee’s injury or death was due to intoxication. A blood test may be conducted under cause of reasonable suspicion to determine intoxication.

Under the West Virginia Safer Workplace Act, if an employer implements a drug-free workplace program which includes notice, education, and procedural requirements for testing for drugs and alcohol, an employer may require the employee to submit to a drug or alcohol test. If a drug or alcohol is found to be present in the employee’s system at a level proscribed by the employer’s policy, an injured employee forfeits eligibility for indemnity benefits under worker compensation laws. However, the employer’s drug-free workplace program must notify the all employees that it is a condition of employment for an employee to refrain from working with the presence of drugs or alcohol in the body. The policy must state that if an injured employee refuses to submit to a test for drugs or alcohol, that employee forfeits eligibility for indemnity benefits under workers’ compensation laws.