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Navigating the West Virginia Safer Workplace Act: What To Do When an Employee Reports to Work Under the Influence

Submitted by Firm:
Steptoe & Johnson PLLC - West Virginia
Firm Contacts:
Bryan Cokeley, Susan Deniker
Article Type:
Legal Article

The holiday season and corresponding celebratory shenanigans will soon be upon us. This means that many employers may be facing the question, “What do we do when someone brings their party to work?” This article aims to cover in broad strokes how to navigate these situations, but there is never a one-size-fits-all response, so employers should proceed thoughtfully.

Which laws address my ability to drug and alcohol test if we believe an employee is under the influence?

For private employers, the West Virginia Safer Workplace Act (the Act) allows employers to require drug and alcohol testing for current (and prospective) employees. Under the Act, an employer may require a current employee to take a drug or alcohol test on suspicion of intoxication or drug use if (a) the employer’s written policy allows for drug or alcohol testing to investigate whether an individual employee is impaired and (b) the employer follows the Act’s notice, educational, and procedural requirements. Employers that have a policy that complies with the Act’s requirements (and that follow that policy) are immune from legal claims that arise from their acting in good faith based on the results of a drug or alcohol test.

Employers not subject to the Act or other statutory drug testing programs are not allowed to drug test their current employees unless (a) the employer has a reasonable, good faith objective suspicion of an employee’s drug usage or (b) an employee’s job responsibility involves public safety or the safety of others. Furthermore, the Act does not apply to employers covered by other specific drug testing statutes, such as those in the areas of public improvement projects, mining, and federally regulated transportation. Last, in some instances, drug testing could implicate the relatively new West Virginia Medical Cannabis Act.

What are signs that indicate an employee may be under the influence?

Some signs of impairment that warrant “reasonable suspicion” include slurred speech, bloodshot eyes or dilated pupils, unsteady or irregular gait, nonsensical speech, shakes/tremors, unusual sweating or shivering, inability to sit still or focus, sudden mood changes or uncontrollable laughter, and unusual odors or the smell of alcohol. Be sure to have two or more supervisors timely document the objective facts that led to the suspicion. When documenting, they will want to be as specific as possible with names of witnesses to the behavior as well as the where, when, and what of each incident. Observations should also include notes on any changes to the employee’s appearance, mood, odor, speech, gait, or other movement.

What do I do if I suspect someone is under the influence?

A supervisor or a member of Human Resources (HR) should approach the employee in private to share their observations (not opinions) of the employee’s behavior/appearance and ask the employee if anything is wrong/how they are feeling. If the employee reports feeling ill, the employer could inquire as to whether they need medical attention or if the employer can call the employee’s emergency contact. If the employer still has objective suspicions that the employee is under the influence, the employer should document the observations and consult the drug testing policy. Document do not diagnose. In accord with the written policy, supervisors and/or HR should quickly decide whether or not to send the employee for reasonable suspicion testing. If the supervisor/HR decides to test, the supervisor should explain this to the employee and drive the employee to the testing facility/site. The supervisor should remain at the testing facility/site and following the test, drive the employee home or coordinate a ride. While a recent Supreme Court of Appeals of West Virginia decision found that an employer was not legally obligated to provide or coordinate a ride home, making this phone call or drive is a best practice.

What happens if the employee refuses to be tested?

If the employee refuses to be tested, the employer should consult the written policy to determine if a refusal can be considered a positive test result. It is likely that the employer is on firm ground to discipline and/or terminate due to the refusal.

What if my policy does not provide for reasonable suspicion testing?

If the employer’s policy does not reserve the right to test on reasonable suspicion and therefore does not comply with the Act, an employer may still be able to test if there is a good faith basis for the suspicion and the employee’s job involves public safety. Of course, the employer will not enjoy the immunity provided to employers under the Act.

What do we do if the drug test comes back positive?

Be sure to consult the policy for the next steps. The policy may reserve the right to discipline and/or terminate employment based on a positive drug screen, or it may call for the employer to offer the employee an option of rehabilitation and/or leave. The decision that management and HR makes should be consistent with prior actions if/when a similar situation arises.

What do we do if the test comes back positive for marijuana and the employee has a medical cannabis card?

While having a medical cannabis card could allow an employee to test positive for marijuana/THC/cannabinoids on a pre-employment or random drug screen without repercussions (depending on the employee’s position), the Medical Cannabis Act does not require an employer to tolerate employees being under the influence while on the job. Unfortunately, there has not yet been significant case law developed in this area, so employers facing this situation should consult legal counsel before making a decision.

If you have questions concerning this legal insight, please contact the authors or any member of Steptoe & Johnson’s Labor & Employment Compliance Team.