The Safer Workplaces Act, passed in 2017 (WV Code Secs. 21-3E-1 et seq.), significantly expanded the circumstances under which private employers may conduct drug and alcohol testing, but still contains some important limitations. Under the Act, employees and job applicants may be tested for the presence of drugs and alcohol as a condition of continued employment or hiring, and it authorizes drug testing for the following reasons:
• Deterrence and/or detection of possible illicit drug use; possession, sale, conveyance, distribution or manufacture of illegal drugs, intoxicants, or controlled substances in any amount or in any manner, on or off the job; or the abuse of alcohol or prescription drugs;
• Investigation of possible individual employee impairment;
• Investigation of workplace accidents, incidents of employee theft, or other employee misconduct;
• Maintenance of safety for employees, customers, clients, or the public at large; or
• Maintenance of productivity, quality of products or services, or security or information.
The law is not without limitations, however:
• The employer must have a written policy related to testing (for applicants and current employees) before it tests employees or applicants;
• The employer may not take any adverse employment action before a confirmatory drug test, by an approved laboratory, has come back positive;
• The employer bears the cost of the testing, including payment to the employee for the time spent having the testing complete and transportation to the testing site, if necessary;
• The employee must be given the opportunity to provide information which might bear upon the results of the test (i.e., prescription drug information);
• The employer must provide ...