Some states have comprehensive laws that specifically regulate or prohibit drug testing in the private sector workplace; however, West Virginia does not have such a law. The West Virginia Court of Appeals has ruled that random drug testing of private employees violates the right to privacy and is contrary to the state's public policy. Drug testing is accepted in two situations, however, when:
Any employee who attempts to pass a drug test by using another individual's sample or adds anything to a sample to make it impure is guilty of a misdemeanor. Likewise, anyone who possesses, sells, or advertises for the sale or distribution of any product to pass drug and alcohol tests is guilty of a misdemeanor. The penalties include a fine of up to $1,000 for a first offense, a fine of up to $5,000 for a second offense, and a fine of up to $10,000 plus up to 1 year of imprisonment for third and subsequent offenses.
The West Virginia Human Rights Act prohibits employment practices that discriminate on the basis of certain classifications, including disability (WV Code Sec. 5-11-2et seq.). The Act covers all public employers and private employers with 12 or more employees. However, the state Supreme Court ruled that the Human Rights Act can apply to all employers, even those with fewer than 12 employees, because employment discrimination by any size employer violates the established "public policy" of West Virginia.
The Act's definition of "disability" specifically excludes persons ...