Pub. 8 2017 Issue 3

www.wvbankers.org 12 West Virginia Banker The West Virginia Safer Workplace Act Expands the Ability of Banks to Conduct Alcohol and Drug Testing By Mark H. Dellinger, Bowles Rice LLP O n April 26, 2017, Governor Jim Justice signed The West Virginia Safer Workplace Act (“Act”) (House Bill 2857) into law. This legislation became effective on July 7, 2017, and completely changes the landscape for alcohol and drug testing by private sector employers in West Virginia. Consequently, many employers, like banks, now have much greater latitude to implement alcohol and drug testing programs. The purpose of this article is to provide a brief overview of the contents and requirements of the Act. Drug Testing Prior to Passage of the Act Prior to passage of the Act, the West Virginia Supreme Court of Appeals held that there were limited circumstanc- es under which a current employee of a private employer could be drug tested. Specifically, the Supreme Court held that drug testing was an invasion of an employee’s right to privacy except in the following two situations: (1) where the employer has a reasonable good faith objective suspicion of an employee's drug usage; or (2) random testing when an employee's job responsibility involves public safety or the safety of others. The Supreme Court has also held that private employers were permitted to administer drug tests to employees in the post offer and pre-employment context, but that ruling was confined to the facts of that case. These judicial decisions did not provide much guidance to employ- ers who were oftentimes confronted with more questions than answers in trying to determine the parameters of lawful drug testing. Employers who guessed wrongly were subject- ed to liability from wrongful discharge and invasion of privacy lawsuits. Alcohol and Drug Testing Under the Act The Act “declares that the public policy of this state is to advance the confidence of West Virginia workers that they are in a safe workplace and to enhance the viability of the work- place they labor in by recognizing the right of West Virginia’s employers to require mandatory drug testing, not only of applicants, but of current employees . . . .” While the Act still recognizes an individual’s right of privacy, it also recognizes that this right is outweighed by the previously articulated public policy. Accordingly, the Act provides that it is lawful for private employers to test employees or prospective employees for the presence of alcohol or drugs as a condition of continued employment or hiring. The Act also provides legal protections for employers who act in good faith based on drug or alcohol test results so long as they adhere to the accuracy and fairness safeguards set forth in the Act. Furthermore, the Act now permits employers to drug test current employees for a wide variety of reasons. These reasons include, but are not limited to: (1) deterrence and/ or detection of possible illicit drug use; (2) investigation of possible employee impairment; (3) investigation of workplace accidents; (4) safety; and (5) “[m]aintenance of productivity, quality of products or services, or security of property or information." What Employers Are Covered by the Act? The Act applies to all private sector employers, regardless of size, except for employers who are already covered by existing statutory drug testing schemes. It does not apply to public sector employers such as the United States, the state, or political subdivisions. What Substances Are Covered by the Act? Under the Act, private employers may test employees or prospective employees for alcohol, which is defined as “ethanol, isopropanol, or methanol.” In addition, employers