Pubdate: Fri, 05 Dec 2003
Source: Charleston Daily Mail (WV)
Copyright: 2003 Charleston Daily Mail
Contact:  http://www.dailymail.com/
Details: http://www.mapinc.org/media/76
Author: Toby Coleman
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

STATE HIGH COURT APPROVES PRIVATE EMPLOYER DRUG TESTS

In a big victory for employers, the state Supreme Court said private 
employers can require job applicants to submit to drug tests without 
violating their privacy rights.

The unanimous decision, issued Thursday, was a defeat for privacy advocates 
trying to expand West Virginia's wide-ranging ban on random drug testing in 
the workplace. It was issued per curiam, meaning that the author of the 
decision was not identified.

The decision means that private employers can require every single job 
applicant offered a job to give them urine for a drug screen before they 
begin work.

The decision does not apply to public sector employers. The court indicated 
in the decision that it may be harder for public sector employers to 
justify post-offer, pre-employment drug testing.

The Supreme Court said that its decision is not intended to inadvertently 
shrink the privacy rights that protect most employees from random drug 
testing in the workplace. Under current law, employers can usually only 
force their employees to submit to drug tests if they have probable cause 
to believe they are using drugs. The Supreme Court also permits random drug 
testing of paramedics and other professionals whose drug use would raise 
safety concerns.

The court considered the legality of post-offer, pre-employment drug 
testing at the request of a former Wal-Mart worker. In 2000, the state's 
largest private employer made Stephanie D. Baughman submit to a urine drug 
screen before she began her job at the chain's Grafton store.

In making its decision, the Supreme Court noted that a job applicant's 
privacy expectations are far less than those of a person on the payroll. 
The decision pointed out that drug screens are just one of the things job 
applicants are willing to submit to "that are far more intrusive than what 
would be considered tolerable for existing employees without special 
circumstances."

The case had a political dimension because Wal-Mart is a member of the U.S. 
Chamber of Commerce. According to Forbes Magazine, the group is planning to 
spend a large sum of money on an attempt to oust Justice Warren McGraw from 
the state supreme court in next year's election.

Although McGraw indicated last month that he might recuse himself from the 
case because of Wal-Mart's association with the group, he ended up 
considering the case. He, like the other four justices, voted in favor of 
Wal-Mart.
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MAP posted-by: Beth Wehrman