HB2771 ENR SUB
H. B. 2771
(By By Delegates D. Poling, Hamilton, Ellem, Shook,
Klempa, Hatfield and Miley)
[Passed April 11, 2009; in effect ninety days from passage.]
AN ACT to amend and reenact §21-1D-2 and §21-1D-8 of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto two new sections, designated §21-1D-5a and §21-
1D-7b, all relating to West Virginia Alcohol and Drug-Free
Workplace Act; defining that a contract under this section
shall only include those whose value is over $100,000;
defining a pre-employment drug test; requiring the submission
of a sworn statement regarding a drug-free workplace;
providing that workers who comply with that United States
Department of Transportation drug testing guidelines are not
required to submit to additional tests; requiring a report to
public authority who let the contract; and providing criminal
Be it enacted by the Legislature of West Virginia:
That §21-1D-2 and §21-1D-8 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §21-1D-5a and §21-
1D-7b, all to read as follows:
ARTICLE 1D. WEST VIRGINIA ALCOHOL AND DRUG-FREE WORKPLACE ACT.
(a) The term "alcohol test" means a procedure conducted to
determine if an individual is under the influence of alcohol.
(b) The term "construction", as used in this article, means
any construction, reconstruction, improvement, enlargement,
painting, decorating or repair of any public improvement let to
contract the value of which contract is over $100,000. The term
"construction" does not include temporary or emergency repairs
(c) The term "contractor" means any employer working on a
public improvement without regard to whether they are serving as
the prime or subcontractor to another.
(d) The term "drug test" means a procedure using at least a
nine-panel drug screen in urine specimens that are collected from
individuals for the purpose of scientifically analyzing the
specimens to determine if the individual ingested, was injected or
otherwise exposed to a drug of abuse.
(e) The term "drug of abuse" means any substance listed under
subsection (h) of this section and any other substance the employer
chooses to test for.
(f) The term "employee" means a laborer, mechanic or other
worker. For the purposes of this article, employee does not
include those persons as are employed or hired directly by a public
authority on a regular or temporary basis engaged exclusively in making temporary or emergency repairs. Furthermore, employee does
not include those persons employed by a contractor who does not
work in public improvement construction.
(g) The term "medical review officer" means a physician who
holds a certificate authorizing them to practice medicine and
surgery or osteopathic medicine and surgery, has knowledge of
substance abuse disorders, has the appropriate medical training to
interpret and evaluate positive drug and alcohol test results
together with a person's medical history and other relevant
biomedical information, has successfully completed qualification
training as outlined in the Code of Federal Regulations at 49
C.F.R. Part 40 §121 (c) and has passed an exam administered by a
nationally recognized medical review officer certification board or
subspecialty board for medical practitioners in the field of
medical review of federally mandated drug testing.
(h) The term "nine-panel drug screen" means a drug-testing
program that tests for marijuana, cocaine, opiates including
hydromorphone, oxycodone, hydrocodone, phencyclidine, amphetamines,
barbiturates, benzodiazepines, methadone and propoxyphene at the
substance screening and confirmation limits where provided under
federally mandated drug and alcohol testing programs or otherwise
accepted as the industry standard.
(i) The term "preemployment drug test" means a drug test taken
within the preceding twelve months from employment or seven days
(j) The term "public authority", as used in this article, means any officer, board or commission or other agency of the State
of West Virginia, its counties or municipalities or any political
subdivision thereof, authorized by law to enter into a contract for
the construction of a public improvement, including any institution
supported, in whole or in part, by public funds of the State of
West Virginia and this article applies to expenditures of these
institutions made, in whole or in part, from public funds.
(k) The term "public improvement", as used in this article,
includes all buildings, roads, highways, bridges, streets, alleys,
sewers, ditches, sewage disposal plants, waterworks, airports and
all other structures upon which construction may be let to contract
by the State of West Virginia, its counties or municipalities or
any political subdivision thereof.
(l) The term "random drug testing" means a procedure in which
employees who perform safety-sensitive tasks are selected to
undergo a drug test by a statistically valid random selection
method without prearrangement or planning.
(m) The term "reasonable cause" means a belief based on facts
and inferences based primarily upon, but not limited to: (1)
Observable phenomena, such as direct observation of use, possession
or distribution of alcohol or a drug of abuse, or of the physical
symptoms of being under the influence of alcohol or a drug of
abuse, such as, but not limited to, slurred speech, dilated pupils,
odor of an alcoholic beverage or a drug of abuse, changes in affect
or dynamic mood swings; (2) a pattern of abnormal conduct, erratic
or aberrant behavior or deteriorating work performance such as frequent absenteeism, excessive tardiness or recurrent accidents,
that appears to be related to the use of alcohol or a drug of abuse
and does not appear to be attributable to other factors; (3) the
identification of an employee as the focus of a criminal
investigation into unauthorized possession, use or trafficking of
a drug of abuse; (4) a report of use of alcohol or a drug of abuse
provided by a reliable and credible source; and (5) repeated or
flagrant violations of the safety or work rules of the employee's
employer, that are determined by the employee's supervisor to pose
a substantial risk of physical injury or property damage and that
appears to be related to the use of alcohol or a drug of abuse and
that does not appear attributable to other factors.
(n) The term "safety-sensitive duty" means any task or duty
fraught with such risks of injury to the employee or others that
even a momentary lapse of attention or judgment, or both, can lead
to serious bodily harm or death.
(o) The term "under the influence of alcohol" means a
concentration of eight hundredths of one percent or more by weight
of alcohol in an individual's blood or a concentration of eight
hundredths of one gram or more by weight of alcohol per two hundred
ten liters of an individual's breath.
§21-1D-5a. Drug-free workplace policy not applicable to workers
required to follow federal Department of
Transportation drug testing guidelines.
In instances where a worker is required by law to follow United States Department of Transportation drug testing guidelines,
no additional drug tests are required under this article.
§21-1D-7b. Contractor to provide certified drug-free workplace
No less than once per year, or upon completion of the project,
every contractor shall provide a certified report to the public
authority which let the contract. The report shall include:
(1) Information to show that the education and training
service to the requirements of section five of this article was
(2) The name of the laboratory certified by the United States
Department of Health and Human Services or its successor that
performs the drug tests pursuant to this article;
(3) The average number of employees in connection with the
construction on the public improvement;
(4) Drug test results for the following categories including
the number of positive tests and the number of negative tests:
(A) Preemployment and new hires;
(B) Reasonable suspicion;
§21-1D-8. Penalties for violation of this article.
(a) Any contractor who violates any provision of this article
is, for the first offense, guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $1,000; for the second offense, the person is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $1,000 nor more
than $5,000; for the third or any subsequent offense within the
preceding five years , the person is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than $5,000 nor
more than $25,000 and the contractor shall be excluded from bidding
any additional new public improvement projects for a period of one
(b) Any person who directly or indirectly aids, requests or
authorizes any other person to violate any of the provisions of
this article is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $50 nor more than $250.