Workplace Drug Testing in West Virginia

West Virginia has a broad drug testing law.

Has your employer or a prospective employer in West Virginia asked you to take a drug test? Federal law generally doesn’t require or prohibit drug testing by employers, except in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense). However, West Virginia has a drug testing law that all employers must comply with.

Employer’s Right to Test

The West Virginia Safer Workplace Act, which took effect in July of 2017, gives private employers broad authority to test job applicants and current employees for drugs or alcohol. Employers may now test for a wide variety of reasons, including:

  • to investigate a workplace accident
  • to investigate workplace theft or misconduct
  • to deter or detect illegal drug use, alcohol abuse, or prescription drug abuse
  • to investigate suspected impairment of an employee
  • to protect the safety of employees, customers, clients, or the general public
  • to maintain productivity or quality of products or services, or
  • to protect company property or information.

Employers must have a written drug and alcohol testing policy and distribute it to all employees and to job applicants subject to testing. Employers may refuse to hire an applicant, or fire an employee, who receives a positive test result or who refuses to take the test.

Rights of Applicants and Employees

Employers must pay for the costs of testing, including reasonable transportation costs if the applicant or employee is required to travel to another location. Testing must be scheduled during, or immediately before or after, an employee’s regular work period. Employees must be paid for their time.

Testing must be conducted by an approved laboratory and meet minimum requirements to ensure sanitary conditions, applicant and employee privacy, and proper labeling and collection of samples.

Applicants and employees must be given the opportunity to provide information relevant to the test, such as current prescription drug use or other medical information. In the event of a positive result, they also have the right to challenge the result and order retesting of the sample at their own cost.

Legal Claims for Drug Testing

Applicants and employees who have been subjected to an illegal drug or alcohol test can sue. However, this right is very limited under West Virginia’s drug testing law. You can sue only if the test revealed a false positive result and the employer knew the test results were false and ignored the true test results on purpose (or because of a disregard for the truth). If an employer reasonably relied on a false positive result in good faith, you can’t collect any monetary damages.

However, West Virginia applicants and employees might also have claims under other legal theories, including:

  • 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.
  • Defamation. An employee might have a valid claim for defamation if the employer publicizes a false positive result, if the employer acts maliciously.

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