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Employee Discipline: West Virginia

Employee Discipline requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Eric E. Kinder, Spilman Thomas & Battle, PLLC

Summary

Recording Meetings

West Virginia requires the consent of one party in order to record meetings, including those of a disciplinary nature. +W. Va. Code § 62-1D-3(e).

The Wiretapping and Electronic Surveillance Act provides for criminal penalties for any violations.

See Employee Management > Employee Privacy: West Virginia.

Discipline Regarding Guns in the Workplace

West Virginia law provides for the right of individuals under certain circumstances to carry a weapon in public places. However, possession of any deadly weapon, including a firearm, is expressly prohibited in the schools and courts of law. +W. Va. Code § 61-7-11a.

Smoke-Free Workplace Law

Numerous counties in West Virginia have Clean Indoor Air Regulations. These regulations require employers to inform current employees and potential applicants of the smoke-free workplace requirements.

In addition, although there is no statewide e-cigarette or smoking ban in West Virginia, a number of municipalities do prohibit the use of e-cigarettes in all enclosed workplaces. In addition, the City of Buckhannon, WV prohibits smoking and the use of electronic cigarettes in city-owned parks and recreational facilities.

Smokers' Rights

An employer cannot refuse to hire, discharge, disadvantage or penalize an employee because an employee uses tobacco off the premises of the employer during nonworking hours. +W. Va. Code § 21-3-19(a).

However, West Virginia law allows an exemption if an employer is a nonprofit organization which, as one of its primary objectives, discourages smoking or tobacco use. +W. Va. Code § 21-3-19(b). In addition, an employer can make cessation programs available to employees.

Political Activities

West Virginia law protects employees' political activities. An employer may not attempt to influence employee political activities by including threats or coercive communications by:

  • Printing or distributing candidate materials in pay envelopes or through other means;
  • Posting placards or handbills in the workplace;
  • Verbally delivering political messages.

+W. Va. Code § 3-9-15.

Medical Marijuana

West Virginia has enacted the West Virginia Medical Cannabis Act. +2017 Bill Text WV S.B. 386. The Act became effective upon passage in April 2017. However, the state cannot issue identification cards to patients until July 1, 2019. See Disabilities (ADA): West Virginia.

Under the Act, an employer may not terminate, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding his or her compensation, terms, conditions, location or privileges of employment solely based on the employee's status as a certified medical cannabis user.

However, an employer may prohibit an employee from performing the following while under the influence of medical cannabis:

  • Any job duty at heights or in confined spaces including, but not limited to, mining;
  • Any task that the employer deems life-threatening to the employee or other workers. This prohibition will not be deemed an adverse employment decision, even if it results in financial harm for the employee; or
  • Any duty that could result in a public health or safety risk. This prohibition will not be deemed an adverse employment decision, even if it results in financial harm for the employee.

The Act prevents an individual from operating or being in physical control of any of the following while under the influence of medical cannabis:

  • Chemicals that require a permit issued by the federal or state government;
  • High-voltage electricity or any other public utility; or
  • Vehicles, aircraft, trains, boats or heavy machinery.

W. Va. Code § 16A-5-10.

Federal law continues to prohibit the use of marijuana. Marijuana, or cannabis, is scheduled as a Schedule I controlled substance, which means that it has no acceptable medical use. Therefore, an employer:

  • Does not have to accommodate marijuana use, including ingestion, possession or intoxication, in the workplace; and
  • May take adverse action, including discipline up to and including termination, against an employee who is under the influence of marijuana at work.

Therefore, even applying the state law, an employer need not permit or accommodate marijuana use or ingestion in the workplace, or an employee working while under the influence of marijuana.

An employer should continue to follow applicable drug testing policies and document any facts that would show impairment while at work, such as those relating to dexterity or appearance. In addition, an employer should review its drug testing policies and train supervisors to understand whether an employee is impaired. Supervisors and HR should also be trained on how to handle disciplining an employee who tests positive (e.g., providing the employee a reasonable opportunity to contest the discipline).

Drug and Alcohol Testing

West Virginia Safer Workplace Act

The West Virginia Safer Workplace Act permits employers to test employees for drugs and alcohol under certain circumstances. The Act contains confidentiality provisions. +W. Va. Code § 21-3E-1; see also HR and Workplace Safety: West Virginia. An employer may test a current employee as a condition of continued employment.

However, the law does not require an employer to implement a testing policy. +W. Va. Code § 21-3E-14.

Definitions

The Act defines:

  • Drugs as any substance considered unlawful for nonprescribed consumption or use under the US Controlled Substances Act. This definition includes marijuana, or cannabis. See Medical Marijuana;
  • Employer as any person, firm, labor organization, employment agency or joint labor-management committee, which has one or more full-time employees employed in the same business, or in or about the same establishment; and
  • Good faith as reasonable reliance on facts, or that which is held to be factual without the intent to deceive or be deceived and without reckless, malicious or negligent disregard for the truth.

Employer Liability

The law protects employers who have established a policy and testing program in accordance with the law from the following claims:

  • Actions based on the results of a confirmed positive drug or alcohol test, or the refusal of an employee or job applicant to submit to a drug test;
  • Failure to test for drugs or alcohol, or failure to test for a specific drug or other controlled substance;
  • Failure to test for, or failure to detect, any specific drug or other substance, any medical condition, any mental, emotional or psychological disorder or condition; or
  • Termination or suspension of any substance abuse prevention or testing program or policy.

If an employer complies with the Act, then the employer has qualified immunity from a claim, unless the claim is based on a false positive test result, and the employer had actual knowledge that the result was in error, and ignored the true test result because of:

  • Disregard for the truth; or
  • Willful intent to deceive or be deceived.

If the claim is based on a false positive test result, then:

  • There is a rebuttable presumption that the test result was valid if the employer complied with the law; and
  • The employer is not liable for monetary damages if its reliance on a false positive test result was reasonable and in good faith.

There is no employer liability for any action taken related to a false negative drug or alcohol test.

+W. Va. Code § 21-3E-12.

The law also contains defamation protections for employers. See Performance Appraisals: West Virginia.

Procedures

An employer must implement a written policy that has been distributed to every employee subject to the testing, and that is available for review by prospective employees. The employer should provide information on any availability of counseling, employee assistance, rehabilitation and/or other drug abuse treatment programs that the employer may offer.

The policy may state that an employer requires the collection and testing of samples for legitimate drug abuse prevention and/or treatment purposes, including:

  • Deterrence and/or detection of possible illicit drug use, possession, sale, conveyance or distribution, or manufacture of illegal drugs, intoxicants or controlled substances in any amount or in any manner, on or off the job, or the abuse of alcohol or prescription drugs;
  • Investigation of possible individual employee impairment;
  • Investigation of accidents in the workplace or incidents of workplace theft or other employee misconduct;
  • Maintenance of safety for employees, customers, clients or the public at large; or
  • Maintenance of productivity, quality of products or services or security of property or information.

Testing need not be limited to circumstances where there are indications of individual, job-related impairment of an employee (i.e., reasonable suspicion testing). Prior to the law's enactment, under West Virginia common (or court-made) law, employers could drug test current employees only if the employer had:

  • Specific heightened safety concerns regarding an employee's responsibilities; or
  • Well-grounded individualized suspicion of the employee's drug use.

Baughman v. Wal-Mart Stores, Inc., +215 W. Va. 45 (2003); Buracker v. Berkeley County Council, +2013 W. Va. LEXIS 893 (W. Va. Sept. 3, 2013).

An employer may require samples from its employees, and may require presentation of reliable individual identification from the person being tested to the person collecting the samples. The employer may designate the type of sample to be used for testing.

An employer must:

  • Schedule any drug or alcohol testing of employees during, or immediately before or after, a regular work period. Testing by the employer is worked time for purposes of employee compensation and benefits;
  • Pay all actual costs for drug and/or alcohol testing required by the employer;
  • Provide transportation or pay reasonable transportation costs to current employees if the employer's required tests are conducted at a location other than the employee's normal work site.

Specific procedural requirements include:

  • The collection of samples must be performed under reasonable and sanitary conditions;
  • Any observer of the collection of urine samples must be of the same sex as the employee;
  • Samples collection must be documented, including:
    • Labeling of samples so as to guard against misidentification, and the handling of samples should be in accordance with reasonable chain-of-custody and confidentiality procedures; and
    • Ability of the employee to voluntarily provide notification of any information that may be considered relevant to the test (e.g., currently or recently used prescription or over-the-counter drugs, or relevant medical information). An employer may provide procedures for review by a qualified medical professional to verify a laboratory sample that tests positive in a confirmatory test.
  • Sample collection should guard against contamination, adulteration or misidentification;
  • Confirmatory drug testing must be conducted in a laboratory meeting the requirements under the law; and
  • Confirmation of any positive test results using a different chemical process than was used by the employer in the initial drug screen.

An employer may take any adverse employment action, including discipline, based on a confirmed positive drug or alcohol test.

If an employee wishes to challenge the initial results, then he or she has the right to have the split sample tested by another laboratory as specified under the law. The employee challenging the results bears the cost associated with the testing of the split sample.

Disciplinary Procedures

Upon receipt of a confirmed positive drug or alcohol test result that indicates a violation of an employer's written policy, the employer may use that test result or test refusal as a valid basis for disciplinary and/or rehabilitative actions, including:

  • Requiring that an employee enroll in an employer-provided or approved rehabilitation, treatment and/or counseling program, which may include additional drug and/or alcohol testing (participation in which may be a condition of continued employment), and the costs of which may or may not be covered by the employer's health plan or policies;
  • Suspension of the employee, with or without pay, for a designated period of time;
  • Termination of employment; or
  • Other adverse employment action in conformance with the employer's written policy and procedures, including any relevant collective bargaining agreement provisions.

In the case of an employee in a sensitive position, the employer may permanently remove the employee from the sensitive position and transfer or reassign the employee to an available nonsensitive position with comparable pay and benefits, or may take any other action that is consistent with applicable policies and obligations, including termination or other adverse employment action.

If the employer complies with all compliance requirements, the employer may terminate an employee who fails a confirmed drug or alcohol test.

Unemployment and Worker's Compensation Benefits

An employer should notify employees that it is a condition of employment for an employee to refrain from reporting to work or working while drugs or alcohol are present in his or her body. In addition, an employer should implement a policy that states that if an injured employee refuses to submit to a test for drugs or alcohol, then that employee forfeits eligibility for unemployment compensation or worker's compensation benefits.

If an employer satisfies these requirements, then an employee who fails a confirmed drug test forfeits his or her eligibility for:

  • Unemployment compensation benefits; and
  • Indemnity benefits under worker's compensation laws, if injured at the time of the intoxication.

Confidentiality

The Act provides that all communications received by an employer relevant to an employee's or prospective employee's test results are confidential communications. Therefore, other than in an action related to the Act, these communications may not be:

  • Used or received in evidence in any public or private proceeding;
  • Obtained in discovery in any public or private proceeding; or
  • Disclosed in any public or private proceeding.

West Virginia Alcohol and Drug-Free Workplace Act

The West Virginia Alcohol and Drug-Free Workplace Act requires employers working on public improvement contracts to certify that they maintain a drug-free workplace. +W. Va. Code § 21-1D-3.

At least once per year, the employer must provide a certified report to the public authority in charge of the contract including:

  • Information to show that the education and training service required was provided;
  • The name of the laboratory certified by the US Department of Health and Human Services or its successor that performs the drug tests;
  • The average number of employees in connection with the project;
  • Drug tests results for the following categories including the number of positive and negative tests:
    • Preemployment and new hires;
    • Reasonable suspicion;
    • Post-accident; and
    • Random.

To bid for a public improvement contract, an employer must establish a written drug-free workplace policy and submit the policy to the contracting authority. +W. Va. Code § 21-1D-5. The program must include all of the following:

  • Establish drug testing and alcohol testing protocols that at a minimum require the contractor to:
    • Conduct preemployment drug tests of all employees;
    • Conduct random drug testing that annually tests at least 10% of employees who perform safety-sensitive duties;
    • Conduct a drug or alcohol test of any employee who may have caused or contributed to an accident while conducting job duties if the employer has reasonable cause to suspect that the employee may have been intoxicated or using drugs; and
    • Conduct a drug or alcohol test of any employee when a trained supervisor has reasonable cause to believe that the employee has reported to work or is working under the influence of drugs or alcohol. The supervisor must document the nature of his or her reasonable cause.
  • Require that all drug tests be conducted by a laboratory certified by the US Department of Health and Human Services or its successor;
  • Establish standards governing the performance of drug tests by such a laboratory that include, but are not limited to:
    • Collection of urine samples in a medically approved manner under sanitary conditions;
    • Collection and testing of urine samples with regard for the privacy of the individual tested in a manner reasonably calculated to prevent substitutions or interference with the sample;
    • Documentation of urine samples that reasonably precludes erroneous results, giving the employee tested an opportunity to furnish information regarding prescription or nonprescription drugs;
    • Collection, maintenance, storage and transportation or urine sample in a manner the precludes contamination; and
    • Testing of urine samples in a manner that is scientifically accepted.
  • Establish standards and procedures governing the performance of alcohol tests;
  • Require that a medical review officer review all drug tests that yield a positive result;
  • Establish procedures by which an individual who undergoes a drug test or alcohol test may contest a positive test result;
  • Require when an employee tests positive for drug or alcohol or if the employee is caught adultering a test, the employee is subject to appropriate discipline including termination in accordance with the written drug free policy. If not terminated, the employee shall be subject to random drug or alcohol tests at any time for one year after the positive test;
    • A written notice advising applicants and employees that they will be subject to testing;
    • A written policy statement disseminated to employees explaining:
      • The types of testing that will be conducted;
      • How results will be kept confidential;
      • Disciplinary action that will be taken for confirmed test results or for refusing to take a test;
      • The employee assistance program (EAP); and
      • How to contest the results;
    • Testing of all applicants;
    • Testing of any employee who is reasonably believed to be using drugs or alcohol based on observable facts;
    • Testing of any employee who causes a workplace injury resulting in loss of work time;
    • Testing of any employee after he or she completes a rehabilitation program;
    • Proper collection and testing procedures;
    • Maintenance of an EAP or a resource file of independent assistance providers;
    • Semi-annual drug or alcohol abuse education programs for employees; and
    • Training of supervisors concerning how to handle drug or alcohol abuse.

See Preemployment Screening and Testing: West Virginia.

Polygraph Testing

Generally, employers may not require employees or applicants to submit to a polygraph or lie detector test. +W. Va. Code § 21-5-5b.

The following employers may conduct polygraph or lie detector tests for the sole purpose of determining whether to employ an applicant or to retain an employee:

  • Those hiring or retaining employees in jobs that require direct access to controlled substances;
  • Law enforcement agencies; and
  • Military forces.

Attendance

West Virginia employers may not discipline employees for absences from work for some protected activities.

Judicial Proceedings

Under West Virginia law, when an employee requests leave for work in writing, the employer must grant the leave with pay if the employee is obeying a subpoena or proper authority to appear in court:

  • For jury duty; or
  • To appear as a witness.

+W.Va. CSR § 143-1-14; see also Employee Leaves > Jury Duty: West Virginia.

Military Leave

West Virginia has enacted a law similar to the federal Uniformed Services Employment and Reemployment Rights Act that provides reinstatement rights to private employees. See +W. Va. Code § 15-1F-8.

See USERRA: West Virginia.

Time Off For Voting

West Virginia law requires employers to give employees up to three hours off to vote in any election for which the employee is registered and qualified if the employee makes a written demand at least three days before the election. This only applies to employees who do not have three hours of time off during polling hours. +W. Va. Code § 3-1-42.

Certain employers can schedule when the employees can leave to vote, but the time off must be sufficient and convenient to vote. These employers include:

  • The government;
  • Health care providers;
  • Hospitals;
  • Transportation services;
  • Communication services;
  • Works requiring continuity in operation of:
    • Production;
    • Manufacturing; or
    • Processing.

Civil Air Patrol Leave

West Virginia law prohibits employers from taking certain action based on an employee taking Civil Air Patrol leave. See USERRA: West Virginia.

The law prohibits an employer from:

  • Interfering with the use of Civil Air Patrol leave; and
  • Terminating, fining, suspending, expelling, disciplining or in any other manner discriminating against a Civil Air Patrol member because the employee complies with the law or opposes a practice that does not comply with the law.

+W. Va. Code § 15-1K-8.

In addition, a Civil Air Patrol member who has been employed at least 90 days may not be:

  • Discriminated against or terminated because of membership in the Civil Air Patrol; and
  • Hindered or prevented from performing service during an emergency mission or training if he or she is entitled to leave under the law.

+W. Va. Code § 15-1K-4.

Workplace Theft

Misappropriation of Trade Secrets and Computer Data

West Virginia's Uniform Trade Secrets Act allows employers to file claims against former employees, competitors or others who misappropriate the employer's trade secrets. W. Va. Code § 47-22-1 et seq.

Trade secret information includes:

  • Formulas;
  • Patterns;
  • Compilations;
  • Programs;
  • Devices;
  • Methods;
  • Techniques; and
  • Processes.

In order for information to be considered a trade secret, it must derive potential or economic value from not being generally known to or ascertainable by others. +W. Va. Code § 47-22-1(d).

The West Virginia Computer Crime and Abuse Act also provides criminal penalties and authorizes civil lawsuits regarding information technology theft. W. Va. Code § 61-3C-1 et seq. Specifically, this law allows a claim against anyone who uses a computer or computer network to, among other things:

  • Steal data;
  • Delete data;
  • Alter data;
  • Invade the privacy of another; or
  • Commit computer forgery.

Employee Social Media Accounts

Effective June 10, 2016, West Virginia law prohibits employers from accessing employees' personal social media accounts. +2016 Bill Text WV H.B. 4363, adding W. Va. Code § 21-5G-1. Specifically, the law prohibits an employer from:

  • Requesting, requiring or coercing an employee or a potential employee to disclose a username and password or any other access information to the employee's personal account;
  • Requesting, requiring or coercing an employee to access his or her personal account in the presence of the employer; or
  • Compelling an employee or potential employee to add the employer or an employment agency to their lists of contacts that enable the contacts to access a personal account.

However, an employer may continue to:

  • Access information that is publicly available;
  • Comply with any and all applicable laws and regulations;
  • Require an employee to disclose a username or password for the purpose of accessing employer-issued accounts or or devices;
  • Conduct an investigation or require an employee to cooperate in an investigation. An employer may require an employee to share content if the employer has specific information about an unauthorized transfer of the employer's proprietary information, confidential information or financial data to the employee's account;
  • Conduct an investigation into complaints, allegations or occurrences of sexual, racial or other harassment;
  • Prohibit an employee from using a personal account during work hours, while on employer time or for business purposes; or
  • Request an employee to share specific content regarding a personal account for the purposes of ensuring compliance with applicable laws, regulatory requirements or prohibitions against work-related misconduct.

If an employer inadvertently receives access information to an employee's personal account, the law prohibits an employer from using that information. The employer should take steps to delete that information (unless the information is lawfully used in conjunction with a workplace investigation).

Prohibited Discrimination and Retaliation

Employers should exercise caution when disciplining employees who are members of protected classes, or who have engaged in protected activities.

Discrimination

Equal Pay

When making disciplinary and demotion employment decisions, West Virginia employers should be aware of the Equal Pay for Equal Work Act in addition to protections provided under federal law.

West Virginia law requires employers to pay the same wage rate to both males and females for work of comparable character that requires comparable skills.

The equal pay requirement does not apply if the payment of wages is made under the following systems:

  • Seniority system;
  • Merit system; or
  • A differential is based on good faith factors other than sex.

Covered employers may not retaliate against any employee for complaining about matters relating to sex discrimination or for instituting or testifying in a legal proceeding related to sex discrimination. +W. Va. Code § 21-5B-3; See Employee Management > EEO - Retaliation: West Virginia.

The State Commissioner of Labor has the right to enforce this Act. +W. Va. Code § 21-5B-2.

Any aggrieved employee may file a claim to recover:

  • Unpaid wages for the one-year period prior to filing the action;
  • Additional amount as liquidated damages; and
  • Reasonable attorney fees.

One or more employees can maintain actions for themselves or on behalf of other employees. +W. Va. Code § 21-5B-4.

Disability

In addition to federal protections under the Americans with Disabilities Act (ADA), the West Virginia Human Rights Act (WVHRA) protects employees with disabilities. W. Va. Code § 5-11-1 et seq. Employers with 12 or more employees are covered under the WVHRA.

See Employee Management > Disabilities (ADA): West Virginia.

Age

Under West Virginia law, employers may not discriminate against any individual aged over 40 years of age solely because of age. W. Va. Code § 5-11-1 et seq.

Religion

West Virginia's Human Rights Act covers religion as a protected class. +W. Va. Code § 5-11-2.

West Virginia requires an employer to make reasonable accommodations to the religious needs of employees and prospective employees if:

  • The accommodations can be made without undue hardship to the conduct of the employer's business; and
  • The employee or prospective employee notifies the employer for his or her need for an accommodation.

+W. Va. CSR § 77-3-3.

An employer can refuse to hire an individual or discharge an employee on account of his or her religious beliefs if the employer establishes that the religious needs of the employee impose an undue hardship to the conduct of the employer's business. The employer must explore possible alternatives for accommodation, and if one exists that does not impose an undue hardship on the employer, the employer should accommodate the employee or prospective employee's religion. +W.Va. CSR § 77-3-3.2.

West Virginia provides possible means of reasonable accommodation through voluntary swapping or substitution. +W. Va. CSR § 77-3-3.4.1.

Pregnancy

West Virginia has enacted the Pregnant Workers' Fairness Act, which prohibits discrimination with regard to reasonable accommodations related to pregnancy. +2014 W.V. HB 4284.

See EEO-Discrimination: West Virginia; Employee Management > Disabilities (ADA): West Virginia.

Retaliation

West Virginia statutes contain a number of provisions protecting employees from retaliatory actions. These include the following:

Employer Liability Regarding Employee Discipline

Defamation

Defamation of a private individual under West Virginia common law requires:

  • Defamatory statements;
  • Non-privileged communication to a third party;
  • Falsity;
  • Reference to the private individual;
  • At least negligence on the part of the publisher; and
  • Resulting injury.

Rice v. Rose & Atkinson, +176 F. Supp. 2d 585 (S.D. W.Va. 2001).

Defamation claims can arise in the employment context, particularly when negative evaluations, disciplinary communications or job references have been provided by an employer. However, employers may be protected by a statutory or common law qualified privilege.

See Performance Appraisals: West Virginia.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Employee Privacy: West Virginia

Employee Communications: West Virginia

EEO - Discrimination: West Virginia

Preemployment Screening and Testing: West Virginia