H. B. 2771
(By Delegates D. Poling, Hamilton, Ellem, Shook,
Klempa, Hatfield and Miley)
[Introduced February 24, 2009; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact §21-1D-2, §21-1D-4 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 including political
subdivisions of West Virginia in the West Virginia Alcohol and
Drug-Free Workplace Act; submission of a sworn statement
regarding a drug-free workplace prior to final payment;
workers required to submit to United States Department of
Transportation not required to submit to additional drug tests
under this article; contractor to provide a certified report;
and third or subsequent offense penalties apply if the
offenses occur within a five-year period.
Be it enacted by the Legislature of West Virginia:
That §21-1D-2, §21-1D-4 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 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
such 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
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.
(i) (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.
(j) (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.
(k) (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.
(l) (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 controlled substance drug of abuse,
or of the physical symptoms of being under the influence of alcohol
or a controlled substance drug of abuse, such as, but not limited
to, slurred speech, dilated pupils, odor of an alcoholic beverage
controlled substance 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
substance 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
controlled substance drug of abuse;
(4) a report
of use of alcohol or a
controlled substance drug of abuse
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
substance drug of abuse
and that does not appear attributable to
(m) (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.
(n) (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-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-5a. Drug-free workplace policy not applicable to workers
required to follow federal Department of
Transportation drug testing guidelines.
In instance where a worker is require 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 before final payment, every
contractor shall provide a certified report to the public authority
which let the contract. The report shall include:
(1) Information on who provided the education and training
service to meet the requirements in section five of this article;
(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 within the preceding five years
subsequent offense, 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.
NOTE: The purpose of this bill is to include subdivisions of
West Virginia in the West Virginia Alcohol and Drug-Free Workplace
Act. This bill would require contractors to submit documentation
that they have complied with the requirements of this article prior
to final payment being made. The bill would also not require
employees who must submit to federal Department of Transportation
drug testing to submit to further drug testing under this article.
The bill requires a contractor to submit at least once a year
documentation to the awarding agency on its drug-free workplace
policy. The bill would further make the offense for the third
infraction if it happened within the preceding five years.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would