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Employee Health: West Virginia

Employee Health requirements for other states

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

Author: Theresa Rogers

Summary

Medical Marijuana

The West Virginia Medical Cannabis Act permits the use of medical marijuana by registered patients with a serious health condition. The Act became effective upon passage on April 6, 2017. However, the state cannot issue identification cards to patients until July 1, 2019. +2017 Bill Text WV S.B. 386.

A serious medical condition means:

  • Cancer;
  • HIV-positive status/AIDS;
  • Amyotrophic lateral sclerosis;
  • Parkinson's disease;
  • Multiple sclerosis;
  • Damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity;
  • Epilepsy;
  • Neuropathies;
  • Huntington's disease;
  • Crohn's disease;
  • Post-traumatic stress disorder;
  • Intractable seizures;
  • Sickle cell anemia;
  • Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or has proved ineffective as determined as part of continuing care; and
  • Terminal illness, meaning a medical prognosis of life expectancy of approximately one year or less if the illness runs its normal course.

Patients must have a valid identification card issued by the state Department of Health and Human Resources' Bureau for Public Health, which authorizes the patient to obtain and use medical cannabis as authorized by the law.

The law prohibits an employer from terminating, threatening, refusing to hire or otherwise discriminating or retaliating against an employee regarding his or her compensation, terms, conditions, location or privileges 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.

In addition, the law 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.

Nothing in the law requires an employer to accommodate the use of medical cannabis on its premises or property or limits an employer's ability to discipline an employee for being under the influence of medical cannabis in the workplace or for working while under the influence of medical cannabis when the employee's conduct falls below the standard of care normally accepted for his or her position.

While medical marijuana use may be legal under West Virginia law, it is still a Schedule I substance under the Federal Controlled Substances Act, and, therefore, is illegal under federal law. The Medical Cannabis Act does not require an employer to commit any act that would put it or any of its agents in violation of federal law.

Smoking in the Workplace

Workplace Smoking Policies

In West Virginia, it is unlawful to smoke in an area where an employer covered by the law (e.g., factories, mercantile establishments, mills or workshops) clearly and conspicuously posts a "No Smoking" sign, in plain English letters, over and near each principal entrance. The prohibition covers lighting a pipe, cigar or cigarette, and entering with a lighted pipe, cigar or cigarette. +W. Va. Code § 21-3-8.

E-Cigarettes

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.

Use of Tobacco During Non-Working Hours

Under West Virginia law, employers cannot refuse to hire, terminate, disadvantage or penalize employees because they use tobacco off the employer's premises during nonworking hours. +W. Va. Code § 21-3-19.

Insurance Rate Distinctions

West Virginia allows employers to offer or impose a price differential for health, disability or life insurance to employers who use tobacco products as long as the premium rate differential reflects the actual difference charged to the employer and the employer provides a statement to employees explaining the differential. +W. Va. Code § 21-3-19(c).

Managing Emergency Medical Situations

Good Samaritan Law

In West Virginia, anyone who renders emergency care in good faith and without receiving payment may not be held liable for any injuries that occur as a result of that emergency care. +W. Va. Code § 55-7-15.

Automated External Defibrillator (AED)

Any person who, acting in good faith and without compensation, renders aid using an automated external defibrillator (AED) is immune from civil liability should injury occur in the use of such device according to West Virginia law. +W. Va. Code § 16-4D-4.

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.