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West Virginia Drug Testing Laws and Regulations

State: West Virginia
Statute of Order:

No West Virginia statute actually covers drug testing in private employment. Unlike many other states, West Virginia hasn’t passed laws to regulate or restrict an employer’s right to require drug tests. The state however does require public contractors on certain construction projects to do drug screening and in 1990, the Supreme Court prohibited private employers from doing random testing.

In the absence of a comprehensive West Virginia drug testing law, employers here who wish to implement their own drug-free workplace program can base their drug testing policies on federal drug testing laws, the West Virginia Alcohol and Drug-free Workplace Act and the Americans with Disabilities Act among others.

Covered Employers:

Chapter 21 - Article 1D of the West Virginia Labor Code, otherwise known as the West Virginia Alcohol and Drug-free Workplace Act mandates that public improvement contractors should implement a drug-free workplace program requiring alcohol and drug testing. No public authority may award a public improvement contract to a contractor unless they maintain a drug-free workplace policy in compliance with section 8 of this article. The contract must include the following provisions:

1. That a drug-free workplace program is implemented;

2. That the awarding public authority may cancel the contract if the contractor:

  • Defaults on the implementation of its drug-free workplace policy;
  • Fails to submit information being requested by the public authority that awarded the contract in relation to its drug-free workplace policy.
  • Provides to the public authority false information regarding the contractor's drug-free workplace policy.
  • During the bidding stage for public improvement contracts, bidders can only qualify to bid if they have a written plan for a drug-free workplace policy.

Applicant Testing:

Applicant testing is covered under Article 1D Section 5 of the West Virginia Labor Code West Virginia Alcohol and Drug-free Workplace Act, which states that a contractors shall conduct pre-employment drug tests for all employees.

Employee Testing:

Employee testing is likewise covered under Section 5 of the West Virginia Labor Code West Virginia Alcohol and Drug-free Workplace Act where it is stated that employees may be subject to the types of drug tests that include, but are not limited to, the following:

  • Pre-employment
  • Post-accident
  • Random ( for employees performing safety-sensitive duties)
  • Reasonable cause

Section 5 further states that the drug-free workplace policy does not apply to workers who are already covered by the guidelines set forth by the Department of Transportation. These employees no longer require additional drug tests.

Conditions and Methods:
  • The Drug-free workplace policy must be written and posted in a prominent spot and easily accessible at the public improvement job site.
  • The drug-free workplace records must be open for inspection by the public authority which awarded the contract, its officers and agents. The records must contain the following:
  • Name of employee
  • Occupation
  • Safety-sensitive status
  • Drug tests performed
  • Employee education
  • Supervisor trainings received
  • The drug test results are confidential and may not be used in criminal and administrative proceedings without the employee’s consent.
  • At least once every year or upon completion of the contract, the contractor shall provide a certified drug-free workplace report to the public authority that awarded the contract which includes but is not limited to the following information:
  • The name of the laboratory performing the drug tests;
  • The number of employees assigned to the public improvement project;
  • The number of negative and positive drug test results under all test categories listed under Article 1D section 5.
Important Bullet Points:
  • Employees or job applicants cannot be asked to pay for medical examinations required by the employer as a condition of employment. A fine of up to $100 will be imposed for every violation.
  • Although a West Virginia Supreme Court decision prohibited private employers from doing random drug testing, it is permitted for public contractor employees who have during the previous year tested positive or been caught tampering with test results. These provisions are typically laid down in the company’s drug-free workplace policy.
  • Pre-employment drug screening is required for incoming employees of correctional facilities in West Virginia.
  • Employees cannot claim Workers’ Compensation Fund benefits for work related injuries or death caused by their intoxication.
  • Being intoxicated on the job is considered misconduct and a ground for termination. These employees are disqualified from receiving unemployment benefits.
Medical Marijuana Law:

There is no medical marijuana program in West Virginia.

The January 2013 and December 2013 West Virginia poll results indicated that a greater percentage of residents support changing law in the state to permit terminally and seriously ill patients to avail of medical marijuana. A greater percentage deemed that it is safer to use marijuana than alcohol.

In February 2016 Senate Bill 640 was introduced by Minority Leader Jeff Kessler and Majority Leader Mitch Carmichael. SB 640 created the Compassionate Use Act for Medical Cannabis. If approved, the bill would have provided legal protection for patients using medical cannabis. The bill was not passed when the senate session ended in March 2016.

If passed the bill would have the following:

Qualifying Medical Conditions

• Cancer

• Glaucoma

• HIV/AIDS

• Hepatitis C

• Amyotrophic lateral sclerosis

• Crohn's disease

• Alzheimer's disease

• Parkinson's disease

• PTSD

• Depression

• Anxiety

• Addiction to amphetamines, opiates

• Cachexia

• Severe or chronic pain.

• Severe nausea

• Seizures

• Persistent muscle spasm

Limitations

• Doing task when under the influence of marijuana is deemed negligent, or grounds for professional malpractice.

• The use and possession of marijuana in a school bus, on the grounds of preschool or primary or secondary school, or correctional facility is illegal.

• Smoking marijuana in any public transportation or public space is illegal.

• It is illegal to operate any motorized vehicle, airplane or boat when under the influence of marijuana.

• It is illegal for a person without debilitating medical condition to use medical marijuana.

Recreational Marijuana Law

There is no recreational marijuana law in West Virginia. House Bill 114 was introduced on May 24, 2016. This bill would have permitted individuals 21 years old and above, the right to possess and grow a limited amount of cannabis if they have been issued a $500 tax stamp. First time offenders will be fined from $1,000 to $2,000. It also stipulated the removal of cannabis from the list of schedule 1 dugs. The bill died in chamber in June 2016.

Possession of marijuana is a misdemeanor with jail time of 90 to 180 days. Sale and distribution of marijuana is a felony with jail time of 1 to 5 years.

Limitations

• First time offenders for the possession of less than 15 grams of cannabis are offered conditional discharge, which is not a legal conviction.

Effects on Workplace Drug Testing

There are no laws and regulations addressing drug testing for employees working in private companies. However, the State mandates public contractors working on particular projects to do drug testing for their employees. Random drug testing is permissible only if there is reasonable and objective belief that the particular employee is using drugs or if the employee's job concern public safety.

Sources:

http://medicalmarijuana.procon.org/view.resource.php?resourceID=002481#westvirginia

https://legiscan.com/WV/text/SB640/2016

http://www.nolo.com/legal-encyclopedia/workplace-drug-testing-westirginia.html

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Material on these pages (state drug testing laws and drug testing regulations) is provided for informational purposes only and does not constitute legal, medical or technical advice. This drug testing related information is not intended as substitute for obtaining legal advice from attorney, or a relevant medical technical or financial professional. TestCountry is not a law firm or a legal agency, therefore cannot guarantee the accuracy of this content. Drug testing laws are collected from legal and/or state sources, and it may or may not be valid by the time you are viewing it. Any views or opinions expressed are solely those of the author and do not necessarily represent those of Confirm Biosciences Inc. DBA TestCountry.

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