West Virginia Approves Safer Workplace Act

(Fall 2017) West Virginia Governor Jim Justice signed HB 2857 and The Safer Workplace Act became effective on July 7. The measure gives employers more freedom by allowing workplaces to screen both potential hires and employees for drug and alcohol use as a condition of hiring or continued employment. This legislation nullifies previous laws that only allowed employers to perform drug tests in cases of reasonable suspicion and safety-sensitive positions. The restrictions were not applicable to potential employees and caused confusion.

The Safer Workplace Act does not require employers to have drug-free workplace policy but does make it easier for those employers who want one by paring down privacy rights giving greater latitude for employers to do employee drug tests. To comply with the new law, if a workplace wants to implement a testing protocol, employers are required to offer applicants a copy of their drug-free workplace standards, and employees must have foreknowledge about the policy.  Additionally, the new measure protects employers from being liable for actions taken due to a positive drug test or an employee’s refusal to test. Adopting the new Act’s provisions affords employers protection regarding

• The omission of drug or alcohol testing or failure to screen for a specific drug or other controlled substance.
• Failure to detect any specific drug or other substance; any medical condition; or any mental, emotional or psychological disorder or condition.
• The cessation of any substance abuse prevention or screening program/policy.

Another benefit of instituting a drug-free workplace program under West Virginia’s new law is a cap on unemployment insurance and workers’ compensation claims in cases where the employer’s written policy states employees cannot work with alcohol or prohibited drugs in their system.

To qualify for these limitations, the written policy must also state that an injured employee’s refusal to submit to a test results in the forfeiture of unemployment and workers’ compensation benefits. Additionally, the act does not require an employer to provide any assistance or treatment programs.

HB 2857 states that workplaces must underwrite the cost of testing and, if not conducted at the workplace, directs employers to either provide or pay for transportation to and from the testing site.

Although the law leans heavily in favor of employers, some safeguards are also built into the law for workers. For example, each positive result must be followed up with a second screening. Employees and applicants may also choose to give information that could affect the outcome of tests, such as the use of prescription medications.

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