Pub. 8 2017 Issue 3

Fall 2017 13 West Virginia Banker Mark H. Dellinger is an attorney in the Charleston, West Virginia office of Bowles Rice LLP, and concentrates his practice in labor and employment law and litigation. Mr. Dellinger is the leader of the firm’s Labor & Employment Law team and can be reached at (304) 347-1178 or by e-mail at mdellinger@bowlesrice.com. . may test employees or prospective employees for drugs, which are defined as “any substance considered unlawful for nonprescribed consumption or use under the United States Controlled Substances Act (21 U.S.C. § 812).” What Are the Basics of the Act? In order to take advantage of the testing opportunities provided by the Act, employers must have a written policy that covers its alcohol and drug testing program. The written policy must strictly comply with requirements of the Act, and be provided to employees or made available to prospective employees. There are requirements that govern sample collection, and initial and confirmatory tests. Employers must pay for the costs of the tests, including testing time and transportation costs, except for any split sample costs which are borne by the employee. Before any adverse employment action is taken by an employer, a positive test result must be confirmed in accordance with the employer’s written policy. An employer is empowered to administer a variety of adverse employment actions, including refusal to hire, termination, suspension (with or without pay), mandatory employer-pro- vided or approved rehabilitation, treatment, or counseling, or any other adverse employment action in conformance with the employer’s written policy. The Act does not require em- ployers to offer rehabilitation or counseling programs, but if they do, information about such programs must be provided to employees in the employer’s written policy. If employees test positive for alcohol or drugs, they may forfeit their rights to workers’ compensation and unemployment compensation benefits. However, for this to occur, the employer must satis- fy certain notification requirements in its written policy. What Now? The discretion afforded to employers who wish to conduct alcohol and drug testing under the Act is a positive legal development for employers who operate in West Virginia. Accordingly, employers who want to take advantage of the expanded ability to conduct testing under the Act, along with its legal liability protections, should adopt or revise their alco- hol and drug testing policies. Strict compliance with the Act is required. From a practical perspective, employers will want to identify service providers (e.g., approved laboratories and medical review officers), select testing devices, train supervi- sors, and educate employees. For those employers who do not want to conduct testing in accordance with the Act, they will be subject to the limitations and uncertainty imposed by the state of the law in effect prior to passage of the Act. 