Last month, the Supreme Court of Appeals of West Virginia ruled that a sheriff’s deputy failed to state a claim for invasion of privacy with respect to a drug test.

In Buracker v. Berkeley County Council, a deputy was ordered to submit to a drug test.  When the deputy questioned the basis for the test, the sheriff stated that he heard a rumor that the deputy was using illegal drugs. The deputy passed the drug test, but sued the employer for invasion of privacy.  According to the deputy, the indisputable fact that he worked in a safety sensitive position was insufficient to justify the drug test. The deputy argued that, in order for the drug test not to be a privacy invasion, his employer also had to have a reasonable good faith objective suspicion that he was using drugs.

The employer filed a motion to dismiss, arguing that the drug test was not an invasion of privacy because the deputy’s job was safety sensitive. The trial court granted the motion to dismiss and the Supreme Court of Appeals of West Virginia affirmed. Citing its 1990 decision in Twigg v. Hercules Corp., the court ruled that drug testing is permitted when an employee works in a safety sensitive position or when there is a reasonable good faith objective suspicion of drug usage.  In other words, contrary to the deputy’s argument, drug testing of safety sensitive employees is permissible even absent a reasonable belief of drug use. Further, it may be permissible to require a drug test of a non-safety sensitive employee when an employer has a reasonable good faith objective suspicion the employee is using drugs.

Despite this result, West Virginia employers should continue to proceed with caution when requiring drug testing of employees, particularly non-safety sensitive employees, in light of the broad privacy rights recognized by the West Virginia courts.

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