There is no statute in West Virginia that requires private employers to conduct drug tests. If a private employer wishes to administer a drug test on an applicant or employee, a written drug-testing policy must be drafted in accordance with § 21-3E-8 and distributed to all individuals prior to the test. The employer must also pay for all testing costs and the individual’s time (if an employee). The West Virginia Alcohol and Drug-free Workplace Act requires public-improvement contractors to be tested as a condition of employment.
This information is relevant to employers who are not subject to previously established legislation regulating drug testing in the workplace (e.g. government or safety-sensitive positions).
Can Current Employees be Tested? Yes. The West Virginia Safer Workplaces Act permits private employers to test under the following circumstances:
- Accident, theft, or general misconduct in the workplace
- Maintaining the safety of customers, clients, employees and the public
- Maintaining productivity, the quality of products and services
- Securing property or information
- Impairment investigation
- Deterrence and/or detection of illegal activity (sale, use, conveyance, distribution or manufacturing of illicit drugs, controlled substances and prescription drugs)
If the test is conducted as part of the West Virginia Alcohol and Drug-free Workplace Act’s public-improvement contractor requirement, employee testing is restricted to the following:
- Reasonable suspicion of drug or alcohol use
- Random testing (safety-sensitive positions only)
Is Certified Testing Required? Yes, testing must be done at a SAMHSA-certified laboratory.
What Can be Tested? Anything from the body, within reason, that is capable of revealing alcohol, drugs or other metabolites.
How to Conduct a Legal Drug Test
Step 1 – The subject should provide their consent by completing a Drug Test Release Form. After consent is given, a sample must be collected under reasonable and sanitary conditions. An observer may be present at the time of collection provided that the individual is of the same sex as the employee or applicant. Note that if the test is conducted on an employee, it must be done during, immediately before, or immediately after the individual’s normal working hours.
Step 2 – With the sample collected, it must be brought to a SAMHSA-Certified Laboratory for testing.
Step 3 – If the tests results are positive, a confirmation test must be administered immediately after. The employee or applicant should be allowed the opportunity to challenge the results or provide any information which might explain the positive results of their test (e.g. prescription drugs).
Step 4 – An individual who refuses to be tested or fails a drug test may be disqualified from employment consideration or, if an employee, terminated from employment. Additionally, an employer may take the following actions:
- Suspend employee, with or without pay, for a designated amount of time
- Offer rehabilitation, treatment and/or counseling
- Offer other employment opportunities within the company