The new West Virginia Medical Cannabis Act, which does not become effective until July 1, 2019, should have little impact on most employers in West Virginia. Only someone with a serious medical condition and who is issued an identification card by the West Virginia Bureau of Public Health is eligible to get a prescription for medical cannabis. Even then, the person must take the medicine in some form other than smoking it (i.e., pill, topical use, liquid).
While an employer may not discriminate or retaliate against an employee for being eligible to ingest the cannabis, the Act prohibits the employee who is under the influence of cannabis from working with chemicals that require a government permit; working with high voltage electricity or “other public utility;” operating a vehicle, aircraft, train, boat or heavy machinery; or working “at heights or in confined spaces,” such as coal mines. An employer may also prohibit employees from doing work that is life-threatening to the employee or other employees, or that could result in a risk to the safety or health of the public. Thus, an employer may still lawfully administer drug tests to those in safety sensitive positions and to those whose behavior provides the employer with a reasonable, good faith suspicion that the employee is working while impaired.