Has your West Virginia employer or prospective employer asked you to take a drug test? Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit drug tests. For the most part, state and local laws determine whether an employer may test employees and applicants for drugs.
No Drug Testing Statute in West Virginia
Although many states have passed laws regulating or restricting an employer’s right to require drug testing, West Virginia is not one of them. Although West Virginia requires public contractors on certain construction projects to drug test, no West Virginia statute addresses drug testing in private employment.
The West Virginia Supreme Court has issued a couple of decisions that clarify when a private employer may require drug testing without violating employee privacy rights. In the case of Twigg v. Hercules Corp., the Court found that random drug testing of employees was an impermissible invasion of privacy. However, the Court also found two exceptions to this general rule. The Court said that testing would be legal if it was based on a reasonable, good faith, and objective belief that an employee was using drugs, or if testing was limited to employees whose job duties involve public safety or the safety of others.
The Court has also ruled, in Baughman v. Wal-Mart Stores, that requiring applicants to submit to a drug test was not a violation of privacy. The Court reasoned that an applicant’s expectation of privacy was not as significant as an employee’s privacy expectations, and that the employer’s interests outweighed the applicant’s right to privacy in this situation.
Legal Claims for Drug Testing
Because West Virginia doesn’t restrict or prohibit workplace drug testing, employees who believe their test was illegal will have to rely on other legal theories. For example, an employer may run into legal trouble based on who is tested or how the test is conducted. Here are some examples:
- Disability discrimination. The Americans with Disabilities Act (ACA) protects an applicant or employee who is taking medication for a disability. Some prescribed medications can result in a positive result on a drug test, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant's medication was legally prescribed for a disability, the company could be liable.
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender– for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that has a legitimate reason to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation, depending on the circumstances.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes a false positive result, if the employer acts maliciously.