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.