There are few federal limitations on employers testing employees for drugs. Although the federal government requires testing by employers in safety-conscious industries like aviation, transportation, and for NASA and DOD contractors, federal law neither requires nor prohibits employee drug testing. In West Virginia, state and local laws primarily determine the legality of an employer testing
job applicants and employees for drug use.
West Virginia law regulates employee drug testing in the public sector, but no West Virginia statute addresses drug testing in private employment. West Virginia courts have held that drug testing of employees was an invasion of their right of privacy and contrary to public policy.
However, West Virginia courts have also carved out two exceptions to this rule. “Drug testing will not be found to be violative of public policy grounded in the potential intrusion of a person’s right to privacy where it is conducted by an employer based upon reasonable good faith objective suspicion of an employee’s drug usage or while an employee’s job responsibility involves public safety or the safety of others.” Twigg v. Hercules Corp. 183 W.Va. 155, 406 S.E.2d (1990). Thus, if an employer has a “reasonable good faith objective suspicion” or if an employee’s job involves a duty regarding the safety of others, drug testing is not necessarily improper.
However, in Baughman v. Wal-Mart Stores, 215 W.Va. 45, 592 S.E. 2d 824 (2003), the Supreme Court of Appeals of West Virginia held that the principles of Twigg did not apply to the pre-employment situation. Drug testing of employment applicants was not necessarily a violation of their privacy rights. The Court based its decision upon the fact that an applicant’s expectation of privacy is lower in a pre-employment scenario. Additionally, this expectation is not as significant as an employee’s privacy expectation, which therefore outweighs the applicant’s right to privacy.
West Virginia requires public contractors on construction projects to conduct drug testing. The West Virginia Alcohol and Drug-free Workplace Act mandates that public improvement contractors must implement a drug-free workplace program that requires alcohol and drug testing, otherwise, no public improvement contract may be awarded. Also, individuals applying for employment at West Virginia’s correctional facilities must pass a pre-employment drug screening prior to hire.
If you are a West Virginia employer and wish to enlist a drug-free workplace program in compliance with state and federal law, please call Amy Crossan, an expert in employment law, for a consultation at 304-523-8451.