West Virginia Drug Testing Laws and Regulations

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.

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 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 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.

• 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.

• 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.