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Virginia Drug Testing and Workers' Comp Laws

			Virginia Workers' Compensation Laws and Regulations Official Virginia Website

VIRGINIA State Law Summary - Workplace Drug/Alcohol Testing

[Editor's Note: The information below consists of highlights and is not intended to be all-inclusive.]

GENERAL COMMENTS: This is a "hybrid" state with both required tests (mining Industry) and voluntary workers comp discount (5%) programs available.

POLICY: Generally NO law requires a written policy; however, the mining industry testing requires a written policy and those volunteering for the workers compensation discount (and unemployment denial of benefits) employers MUST have written policy.

NOTICE: Not specified. 

COSTS: It shall be unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any medical records required by the employer as a condition of employment. (Sec. 40.1-28.) (No case has interpreted a drug test as a "medical exam," but see the Mining requirements that employer must pay for the cost of required tests).

CONSEQUENCES: Mining results in immediate suspension of certificate. Generally, if tested in an approved lab may defeat a workers comp claim (rebuttable presumption of intoxication or drug use); otherwise no limitations. 

For miners:

• Any person holding a certification issued by the Board shall report to the Chief, within 30 days of any criminal conviction in any court of competent jurisdiction for possession or use of any controlled substance without the prescription of a licensed prescriber. This conviction shall result in the immediate temporary suspension of all certificates held by such person pending hearing before the Board.

• Refusal by any miner to submit to substance abuse testing, or the failure to pass such a test, shall result in the immediate temporary suspension of all certificates, pending hearing before the Board of Coal Mining Examiners.

• The operator or his agent shall notify the Chief, on a form prescribed by the Chief, within seven days of any failure of a pre-employment substance abuse screening test. Notice shall result in the immediate temporary suspension of all certificates held by the applicant, pending hearing before the Board of Coal Mining Examiners

• The operator or his agent shall notify the Chief, on a form prescribed by the Chief, within seven days of (i) discharging a miner due to violation of the company's substance or alcohol abuse policies, (ii) a miner testing positive for intoxication while on duty status, or (iii) a miner testing positive as using any controlled substance without the prescription of a licensed prescriber. An operator having a substance abuse program shall not be required to notify the Chief under subdivision (iii) unless the miner having tested positive fails to complete the operator's substance abuse program. Notice shall result in the immediate temporary suspension of all certificates held by the applicant, pending hearing before the Board of Coal Mining Examiners.

WHO: NO limits generally exist under state law or court decision. Mining requires testing.

WHAT: NO limits generally exist under state law or court decision. In mining an 11-panel drug test is required.

WHERE: Mining tests must be in accordance with SAMHSA-certified lab and procedures. To defeat a workers compensation claim all tests must be conducted by an approved lab. (if so, raises a rebuttable presumption of intoxication or drug use). 

WHEN: NO limits exist under state law or court decision. In the mining industry the law requires testing as follows: 

The Chief shall require substance abuse testing as part of an inspection or complaint investigation if there is reasonable cause to suspect a miner's impairment, due to the presence of intoxicants or any controlled substance not used in accordance with the prescription of a licensed prescriber, or has been a contributing factor to any accident in which a serious personal injury or death occurs at a mine. The Chief shall require substance abuse testing of any miner killed or seriously injured and of any other person who may have contributed to the accident. Any substance abuse testing required by the Chief will be paid for by the Department. 

HOW: NO limitations except in mining (federal DOT/SAMHSA rules required), or to defeat a work comp claim (SAMHSA lab/procedures create rebuttable presumption of intoxication or drug use). 

OTHER STATE PECULIARITIES:
Misconduct (therefore denial of benefits) for unemployment purposes may exist if a positive drug test was conducted per SAMHSA lab/guidelines.
 

WARNING: This information is presented after a review of the statutes, regulations and court decisions in this state. This information is subject to frequent change and inherently involves our opinion in certain instances and you may disagree. This information is presented for general educational purposes only -- IT IS NOT INTENDED TO PROVIDE LEGAL OR OTHER PROFESSIONAL ADVICE.  Always consult your legal and medical professionals before making any decisions.

NOTE: The material below was last updated in 2010. For a copy of the statutes or cases involved, email Bill Judge.

Virginia Workers' Comp Drug Testing Laws
 

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