SB657 SUB1 enr
Senate Bill No. 657
(Senators Kessler, McKenzie and Plymale, original sponsors)
[Passed March 8, 2008; to take effect July 1, 2008.]
AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §21-1D-1, §21-1D-2,
§21-1D-3, §21-1D-4, §21-1D-5, §21-1D-6, §21-1D-7, §21-1D-7a,
§21-1D-8 and §21-1D-9, all relating to the West Virginia
Alcohol and Drug-Free Workplace Act; providing definitions;
providing a statement of policy; requiring public improvement
contractors to have and implement a drug-free workplace
program that requires drug and alcohol testing; providing
standards and protocols for testing; providing for assistance
for employees; requiring a drug-free workplace policy to be
posted at a public improvement construction site; requiring
drug-free workplace records and contents be open for
inspection; providing penalties; providing for
confidentiality; and providing that this article shall only
apply to contracts awarded after this article takes effect.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §21-1D-1, §21-1D-2,
§21-1D-3, §21-1D-4, §21-1D-5, §21-1D-6, §21-1D-7, §21-1D-7a, §21-
1D-8 and §21-1D-9, all to read as follows:
ARTICLE 1D. WEST VIRGINIA ALCOHOL AND DRUG-FREE WORKPLACE ACT.
§21-1D-1. Short Title.
This article shall be called the 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 term "construction" does not include temporary or
(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 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.
(f) The term "employee" means a laborer, mechanic or other
worker. For the purposes of this article, employee does not
include such 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 such 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 "public authority", as used in this article,
means any officer, board or commission or other agency of the State
of West Virginia 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.
(j) 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.
(k) 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.
(l) 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 controlled substance, or of the
physical symptoms of being under the influence of alcohol or a
controlled substance, such as, but not limited to, slurred speech,
dilated pupils, odor of an alcoholic beverage or a controlled
substance, 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 controlled substance 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 controlled substance; (4) a
report of use of alcohol or a controlled substance 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 controlled
substance and that does not appear attributable to other factors.
(m) 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.
(n) 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-3. Statement of policy.
It is hereby declared to be the policy of the State of West
Virginia to require public improvement contractors to have and
implement a drug-free workplace policy that requires drug and alcohol testing.
§21-1D-4. Drug-free workplace policy required for public
Except as provided in section eight of this article, no public
authority may award a public improvement contract which is to be
let to bid to a contractor unless the terms of the contract require
the contractor and its subcontractors to implement and maintain a
written drug-free workplace policy in compliance with this article
and the contractor and its subcontractors provide a sworn statement
in writing, under the penalties of perjury, that they maintain a
valid drug-free workplace policy in compliance with this article.
The public improvement contract shall provide for the
(1) That the contractor implements its drug-free workplace
(2) Cancellation of the contract by the awarding public
authority if the contractor:
(A) Fails to implement its drug-free workplace policy;
(B) Fails to provide information regarding implementation of
the contractor's drug-free workplace policy at the request of the
public authority; or
(C) Provides to the public authority false information
regarding the contractor's drug-free workplace policy.
§21-1D-5. Employee drug-free workplace policy required to bid for
a public improvement contract.
After the first day of July, two thousand eight, any
solicitation for a public improvement contract shall require each
contractor that submits a bid for the work to submit at the same
time an affidavit that the contractor has a written plan for a
drug-free workplace policy. A public improvement contract may not
be awarded to a contractor who does not have a written plan for a
drug-free workplace policy and who has not submitted that plan to
the appropriate contracting authority in timely fashion.
For subcontractors, compliance with this section may take
place before their work on the public improvement is begun.
A drug-free workplace policy shall include the following:
(1) Establish drug testing and alcohol testing protocols that
at a minimum require a contractor to:
(A) Conduct preemployment drug tests of all employees;
(B) Conduct random drug testing that annually tests at least
ten percent of the contractor's employees who perform safety-
(C) Conduct a drug test or alcohol test of any employee who
may have caused or contributed to an accident while conducting job
duties where reasonable cause exists to suspect that the employee
may be intoxicated or under the influence of a controlled substance
not prescribed by the employee's physician when, but not limited
to, the employer has evidence that an employee is or was using
alcohol or a controlled substance drawn from specific documented,
objective facts and reasonable inferences drawn from these facts in
light of experience and training.
The drug or alcohol test shall be conducted as soon as
possible after the accident occurred and after any necessary
medical attention has been administered to the employee.
(D) Conduct a drug test 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
a drug of abuse or alcohol. Written documentation as to the nature
of a supervisor's reasonable cause shall be created.
In order to ascertain and justify implementation of a
reasonable cause test, all supervisors will be trained to recognize
drug- and alcohol-related signs and symptoms.
(2) Require that all drug tests performed pursuant to this
section be conducted by a laboratory certified by the United States
Department of Health and Human Services or its successor;
(3) Establish standards governing the performance of drug
tests by such a laboratory that include, but are not limited to,
(A) The collection of urine specimens of individuals in a
scientifically or medically approved manner and under reasonable
and sanitary conditions;
(B) The collection and testing of urine specimens with due
regard for the privacy of the individual being tested and in a
manner reasonably calculated to prevent substitutions or
interference with the collection and testing of specimens;
(C) The documentation of urine specimens through procedures
that reasonably preclude the possibility of erroneous identification of test results and that provide the individual
being tested a reasonable opportunity to furnish information
identifying any prescription or nonprescription drugs used by the
individual in connection with a medical condition to the medical
(D) The collection, maintenance, storage and transportation of
urine specimens in a manner that reasonably precludes the
possibility of contamination or adulteration of the specimens;
(E) The testing of a urine specimen of an individual to
determine if the individual ingested, was injected or otherwise
introduced with a drug of abuse in a manner that conforms to
scientifically accepted analytical methods and procedures that
include verification and confirmation of any positive test result
by gas chromatography or mass spectrometry.
(4) Establish standards and procedures governing the
performance of alcohol tests;
(5) Require that a medical review officer review all drug
tests that yield a positive result;
(6) Establish procedures by which an individual who undergoes
a drug test or alcohol test may contest a positive test result;
(7) Require that when an employee of a contractor tests
positive for a drug of abuse or alcohol, or if an employee is
caught adulterating a drug or alcohol test, as defined in section
four hundred twelve, article four, chapter sixty-a of this code,
the employee shall be subject to appropriate disciplinary measures
up to and including termination from employment, in accordance with the contractor's written drug-free workplace 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;
(8) Require that when a supervisor has reasonable cause to
believe an employee is under the influence of a drug of abuse or
alcohol at work and requires the employee to take a drug or alcohol
test, the employee shall immediately be suspended from performing
safety-sensitive tasks by the contractor until such time as a drug
or alcohol test is performed and results of that test are
(9) Require a contractor to provide to any employee testing
positive for a drug of abuse or alcohol the list of community
resources where employees may seek assistance for themselves or
their families as identified in paragraph (D), subdivision (12) of
(10) Require that a contractor assist an employee who
voluntarily acknowledges that the employee may have a substance
abuse problem by providing the list of community resources where
employees may seek assistance for themselves or their families as
identified in paragraph (D), subdivision (12) of this section;
(11) Require that a contractor establish a written drug-free
workplace policy regarding substance abuse and provide a copy of
the written policy to each of its employees and to each applicant
for employment. The written policy shall contain, at a minimum,
all of the following:
(A) A summary of all the elements of the drug-free workplace policy established in accordance with this article;
(B) A statement that it is the contractor's intention to
create a drug-free workplace environment;
(C) Identification of an employee who has been designated the
contractor's drug-free workplace representative;
(D) Shall list the types of tests an employee may be subject
to, which may include, but are not limited to, the following:
(iii) Random; and
(iv) Reasonable cause.
(12) Require that a contractor provide within six weeks of new
employment at least two hours of drug-free workplace employee
education for all employees unless that employee has already
received such training anytime within a prior two-year period. The
employee shall participate in drug-free workplace employee
education at least biannually thereafter. The employee education
shall include all of the following:
(A) Detailed information about the content of the contractor's
specific drug-free workplace policy and an opportunity for
employees to ask questions regarding the policy;
(B) The distribution of a hard copy of the written drug-free
workplace policy, including collecting an employee-signed
acknowledgment receipt from each employee;
(C) Specific explanation of the basics of drugs and alcohol
abuse, including, but not limited to, the disease model, signs and symptoms associated with substance abuse, and the effects and
dangers of drugs or alcohol in the workplace; and
(D) A list of community resources where employees may seek
assistance for themselves or their families.
(13) Require that a contractor provide at least two hours of
drug-free workplace supervisor training for all supervisory
employees and annually thereafter. The supervisor training shall
include all of the following:
(A) How to recognize a possible drug or alcohol problem;
(B) How to document behaviors that demonstrate a drug or
(C) How to confront employees with the problem from observed
(D) How to initiate reasonable suspicion and post-accident
(E) How to handle the procedures associated with random
(F) How to make an appropriate referral for assessment and
(G) How to follow up with employees returning to work after a
positive test; and
(H) How to handle drug-free workplace responsibilities in a
manner that is consistent with the applicable sections of any
pertinent collective bargaining agreements.
§21-1D-6. Drug-free workplace written policy to be kept posted.
A clearly legible copy of the contractor's written drug-free workplace policy shall be kept posted in a prominent and easily
accessible place at the public improvement construction site
thereof by each contractor subject to the provisions of this
§21-1D-7. Drug-free workplace records and contents open for
Every contractor shall keep an accurate record showing the
names, occupation and safety-sensitive status of all employees, in
connection with the construction on the public improvement, and
showing any drug tests or alcohol tests performed and employee
education and supervisor training received, which record shall be
open at all reasonable hours for inspection by the public authority
which let the contract and its officers and agents. It is not
necessary to preserve the record for a period longer than three
years after the termination of the contract.
§21-1D-7a. Confidentiality; test results not to be used in
criminal and administrative proceedings.
All drug testing information specifically related to
individual employees is confidential and should be treated as such
by anyone authorized to review or compile program records. Drug
test results may not be used in a criminal proceeding without the
§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 one thousand
dollars; for the second offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than one thousand dollars nor more than five thousand dollars; for
the third or any subsequent offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than five thousand dollars nor more than twenty-five thousand
dollars 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 fifty dollars nor more than
two hundred fifty dollars.
§21-1D-9. Existing contracts.
This article applies only to contracts for construction on
public improvements awarded after the effective date of this