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Safer Workplace Act Redefines Employee Drug Testing

On April 26, 2017, West Virginia Governor Jim Justice signed into law the Safer Workplace Act (HB 2857). This law supersedes judicial precedent permitting employees to sue their employer when they are required to cooperate with a drug or alcohol test under certain circumstances.

Under prior law, employers were only permitted to drug test employees in two situations. First, when the employer had a reasonable suspicion the employee was under the influence of alcohol, drugs and/or controlled substances. Reasonable suspicion meant suspicion based on specific objective facts and reasonable inferences from those facts in light of experience that clinical testing will provide evidence of substance abuse. Second, when the employee was in a safety-sensitive position. These restrictions did not apply to applicants for employment. This standard created confusion for employers about what was “safety sensitive” and what was a “reasonable suspicion.” This confusion is eliminated by the new bill to ensure all employees have a safer work environment.

The Safer Workplace Act permits employers to drug test current employees with greater latitude where the employer has created a testing policy and the employee being tested had actual knowledge of the policy. The law still limits the means and methods by which testing can be conducted and has certain specific notice, education and testing requirements. For instance, the Act requires, “Testing or retesting for the presence of drugs or alcohol by an employer shall be carried out within the terms of a written policy which has been distributed to every employee subject to testing, and is available for review by prospective employees.” An employer cannot be held liable to an employee for failure to have such a policy.

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About this Author

Katherine B. Capito, attorney employment, related litigation, matters Dinsmore Law
Associate

Katherine Capito is a member of the Labor & Employment Department, where she works with a variety of clients to handle employment-related litigation matters, including discrimination and harassment claims. She has worked with clients ranging from coal companies to national consumer product retailers, handling everything from providing counsel to drafting motions to managing the discovery process. She places a premium on learning her client’s business, enabling her to tailor a strategy that meets their objectives and keeps them moving toward a resolution.

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Mark Cather, Labor Practice Group Chair, attorney, Dinsmore Shohl
Partner

Mark Carter is the Labor Practice Group Chair of the firm. He has a national practice focused on advising employers on all aspects of relationships with labor unions.

Mark has advised and represented employers throughout the United States in corporate campaigns, collective bargaining, arbitrations and federal litigation involving labor unions as well as serving employers in employment litigation. He has litigated in Alaska, New Jersey, Idaho, Michigan, Alabama and other states and has advised clients in Washington state, Puerto Rico, California, New York, Florida the District of Columbia and the majority of the states in the nation.

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