West Virginia: Medical Marijuana is Here, but so is Greater Drug Testing Flexibility

West Virginia is the 29th state to legalize marijuana use in some capacity.

The West Virginia Medical Cannabis Act (“MCA”) permits individuals to use medical marijuana as part of treatment for select serious medical conditions, such as cancer, HIV or AIDS, multiple sclerosis, and so forth. The MCA does provide specific employment protections for certified medical marijuana users. Employers concerned with maintaining a safe workplace will be relieved to know that the West Virginia legislature followed up the MCA with the West Virginia Safer Workplace Act (“SWA”), which provides employers corresponding flexibility in handling medical marijuana usage.
Effective July 1, 2017, the MCA prohibits employers from discharging, threatening, refusing to hire, discriminating against or retaliating against employees due to their status as a registered medical marijuana user. However, employers are not required to make accommodations for use of medical marijuana on company property, nor is an employer’s ability to discipline an employee for being under the influence of drugs in the workplace limited. The MCA also provides certain safety limitations, such as prohibiting employees from operating motor vehicles while under the influence of marijuana.

Effective July 7, 2017, the SWA expands the circumstances under which employers can conduct drug and alcohol testing. Employers are now explicitly permitted to require mandatory drug and alcohol testing of employees and applicants as a condition of employment. Drug testing can also be implemented as part of a standard post-accident investigation, which was previously prohibited in West Virginia. Employers may discipline, and even terminate, employees who refuse to test or who test positive, if the test results are found to violate the employer’s written policy.

Overall, though medical marijuana has been legalized, impact on the workplace can be minimized if employers are prepared. Employers who wish to conduct drug and alcohol testing should immediately implement and distribute to employees a written drug and alcohol policy.