Member Article

The 2017 regular session of the West Virginia Legislature saw several changes in laws relevant to employers. Changes of interest to employers include the West Virginia Safer Workplace Act, Second Chance for Employment Act, West Virginia Workplace Freedom Act, West Virginia Medical Cannabis Act, striking employees and unemployment benefits, Physicians Freedom of Practice Act, and bonds for wages and benefits.
 
West Virginia Safer Workplace Act
 
The West Virginia Safer Workplace Act becomes effective July 7, 2017. This act will permit employers to test employees and prospective employees for drugs and alcohol under more circumstances than they are presently allowed to under state law. Under this act, employers may test employees for drugs and/or alcohol for virtually any non-discriminatory reason, so long as the following standards are met:

• Employers must have a written testing policy that has been distributed to all employees.
• Testing must be conducted before, during or immediately after a regular working period.
• The employer must pay all actual costs of the testing and provide transportation if the testing is conducted off the worksite.
• All positive tests must be confirmed via a separate testing method, and an employer may only take an adverse employment action on a confirmed positive test.
• The employee may challenge the results of the initial test and have a split sample tested by another lab, though the employee bears the costs associated with the split sample testing.
• When testing is conducted pursuant to an established testing policy, there is a rebuttable presumption that the test is valid and defends an employer for an employment action taken in good faith and on a reasonable basis.

The act further establishes specific procedures for conducting the testing, including labeling, chain-of-custody and confidentiality procedures. When an employer implements a testing policy under the act, including the requisite notice procedure, an employee who is terminated for a violation of the drug-free workplace program forfeits his or her right to unemployment compensation. Similarly, if an employee is injured while intoxicated, he or she forfeits indemnity benefits under the West Virginia workers’ compensation system. Employers, however, must provide all employees with notice of these potential forfeitures or it waives its right to assert the employee’s forfeiture.
 
Be warned that early testing programs under the act likely will be subject to litigation. The Supreme Court of Appeals of West Virginia has held that employees have a constitutional right to privacy that may be infringed upon by certain drug testing programs in the workplace. The legislature, by this act, has announced that it is the public policy of West Virginia to allow employers to require drug testing of prospective and current employees. Both positions are reasonable, and the issue likely will have to be decided by the Supreme Court of Appeals of West Virginia. If you choose to implement a drug testing program pursuant to the act in early July 2017, be aware that there is a chance you could be the test case.
           
Second Chance for Employment Act
 
SB 76 enacts the Second Chance for Employment Act, which allows persons convicted of certain non-violent, non-sexual felonies to petition for a reduction of the offense to misdemeanor status. If an individual qualifies for a reduction, he or she does not have to disclose the felony on an application for employment. The act further provides limited civil immunity for hiring individuals who have had his or her conviction reduced. For example, an employer may not be liable solely for hiring an individual who has had a felony reduced. Additionally, that an individual had a conviction reduced may not be introduced into evidence in a negligent hiring action. Finally, in an action relating to the failure of an employer to provide adequate supervision of an employee, an employee’s reduced conviction may not be introduced into evidence, unless:

1. the employer knew of the conviction, or was grossly negligent in not knowing of the conviction and
2. the conviction or reduced offense was directly related to the work and conduct that gave rise to the action.

West Virginia Workplace Freedom Act
 
SB 330 makes technical changes to the West Virginia Workplace Freedom Act, commonly known as the Right-to-Work act. Since its passage in 2016, the act has been challenged by unions in the West Virginia court system. A Kanawha County Circuit Court entered a preliminary injunction postponing enforcement of the bill, and that ruling currently is pending before the Supreme Court of Appeals of West Virginia. One of the issues on appeal relates to whether certain terms of the original act were so vague as to be unconstitutional. SB 330 removes those terms from the act.
 
West Virginia Medical Cannabis Act
 
SB 386 creates the West Virginia Medical Cannabis Act establishing a medical marijuana program within the Department of Health and Human Resources under the direction of the Bureau of Public Health. It allows registered patients who suffer from specified conditions to obtain a certification from a physician allowing them to be issued a medical marijuana identification card. No identification cards may be issued to patients until July 1, 2019.
 
Employers must treat employees certified to use medical marijuana like other employees authorized to use other controlled substances, such as opioids. For example, an employer may not discharge, threaten, refuse to hire, or otherwise discriminate against an employee solely because the employee is certified to use medical marijuana. Employers, however, are not required to make any accommodation of the use of medical marijuana on the premises. Employers may discipline an employee for being under the influence of medical marijuana at work when the employee’s conduct falls below the standard of care normally accepted for the employee’s position. Employers also may prohibit an employee under the influence of medical marijuana from any task the employer deems to be life threatening to any employee or that would create a public health or safety risk. Patients under the influence of medical marijuana also are prohibited from being in control of chemicals which require a permit, high voltage electricity or other public utility, and from operating vehicles, aircrafts, trains, boats, and other heavy machinery. The statute further prohibits medical marijuana patients from performing any work at heights or in confined spaces (e.g., mining) while under the influence of medical marijuana. Patients under the influence of medical marijuana may not engage in any work when doing so would constitute negligence, professional malpractice or professional misconduct. Finally, employers are not required to take any act that would put it, or any person acting on its behalf, in violation of federal law.
 
Striking Employees and Unemployment Benefits
 
SB 222 disqualifies striking employees from receiving unemployment benefits. A lockout, however, is not a bona fide labor dispute. For the purposes of unemployment benefits, an individual loses his or her employment due to a lockout if the individual can show: (1) he or she was physically present at the workplace and prepared to work on the first day of the lockout and (2) the employer denied the individual the opportunity to work.
           
The statue does not, however, disqualify a striking employee who has been permanently replaced from receiving unemployment benefits. Under the law, an individual is permanently replaced when he or she demonstrates that:

1. his or her employment is the subject of a strike or other bona fide labor dispute and
2. his or her position has been occupied by another employee who has been notified that he or she is permanently replacing the old employee.

Physicians Freedom of Practice Act
 
SB 402, otherwise known as the Physicians Freedom of Practice Act, limits covenants-not-to-compete between physicians and hospitals. The act limits covenants to one year in duration and to 30 road miles from the physician’s primary place of practice with the employer. The act further provides two exemptions:

1. it does not apply where a physician sells his or her business to his or her employer, and
2. it does not apply to contracts between physicians who are shareholders, owners, partners, members or directors of a practice.

Bonds for Wages and Benefits
 
SB 224 modifies the requirement of posting a bond for wages and benefits for employers who are engaged in construction, or the severance, production, or transportation of minerals from those who had been conducting business in the state for less than five years to those who have been conducting business for less than one year. After one year of doing business in the state, an employer may petition for termination of the bond. The amendment further provides new exceptions for employers; specifically, for:

1. employers who have been in business in another state for five years,
2. employers who have $100,000 in assets, and
3. employers who are a subsidiary of a parent company that has been in business for at least five years.

 
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