This story begins with Bobby Beavers’ difficulty sleeping.
The Bluefield coal miner talked with a pharmacist and decided to try CBD, a chemical compound found in marijuana, as a sleep aid. CBD may contain trace amounts of THC, the ingredient in marijuana that produces the high, but not enough to have any effect. CBD is sold legally in West Virginia.
The next day, Beavers was subject to a random drug test at Onyx Energy. A few days later, he received a letter from West Virginia Office of Miners’ Health, Safety and Training (OMHST) informing him that he had failed the drug test and his surface coal miner certification was being suspended.
Beavers took his case to the Coal Mine Safety Board of Appeals, which ruled in his favor. Testimony at the hearing revealed that the drug test could not distinguish between legal forms of CBD and illegal marijuana.
The West Virginia Office of Miners’ Health, Safety and Training appealed that decision to the West Virginia Supreme Court. This week, the high court in a 3-2 decision upheld the initial suspension, concluding that the agency was following the law.
However, Justice Tim Armstead, writing for the majority, included a significant footnote in the opinion. “We are not unsympathetic to the claims (of Beavers). We also note his testimony regarding the steps he took in an effort to try to make sure that CBD use would not impact any of his drug screens. However, these claims do not provide a defense to his positive drug test.”
In other words, Beavers tried to do the right thing, but the test is the test, and that brings us to the dissent by Justice John Hutchison.
He wrote that he sympathizes with employers who want to maintain safe working conditions, and that “employers should be allowed to rely upon medical test results to secure the safety of their workplace.”
However, he wrote, “The reality is that this case isn’t about a workplace safety decision; this is about a decision by the State and its agencies to deprive a citizen of a government-provided certificate allowing him to work.”
Hutchinson included a footnote that was a call-to-action for the Legislature to correct the drug testing standard.
“There is a possibility that tests relied upon by OMHST do not necessarily distinguish between legal and illegal forms of THC,” he wrote. “Moreover, as this case makes clear, the tests may not distinguish between legal CBD and illegal THC, resulting in miners being punished for engaging in perfectly legal activity.”
It is apparent that drafters of the law addressing drug testing did not envision the growing interest in the use of non-intoxicating forms of cannabis for medicinal purposes. Bobby Beavers may have lost his appeal, but the case has brought to light a portion of the law that needs to be fine-tuned by the Legislature.