A West Virginia coal miner took a legal, over-the-counter sleep aid and then failed a mandatory, random workplace drug test the next day.
Now a majority of the state Supreme Court have upheld the mandatory six-month suspension for coal miner Bobby Beavers after the failed drug test, saying state law doesn’t make a distinction in positive cases after use of otherwise legal forms of cannabidiol, a compound found in marijuana.
Justice Tim Armstead wrote for the three-member majority in a ruling handed down this week. Joining Armstead were justices Beth Walker and Bill Wooton. They upheld an original ruling by the state Office of Miners’ Health Safety and Training.
“There is no requirement that the OMHST prove that the certified person abuses alcohol or drugs. Further, Respondent’s argument that his use of a CBD product is a defense because it is a legal, over-the-counter product is misplaced,” Armstead wrote.
The law that’s central to the case is a section of state code relating to substance abuse screening, passed by the Legislature in 2012. The law requires employers in the coal mining industry to test its certified employees and prospective certified employees for specific drugs and alcohol, including cannabinoids or THC, which stands for tetrahydrocannabinol.
The situation arose when Beavers, a Bluefield resident, was subject to random tests because of his job at Onyx Energy.
On Feb. 10, 2020, Beavers went to his local pharmacist and described problems with sleeping. The pharmacist discussed the possibility of trying a CBD product, which did not require a prescription but which was kept locked behind the counter. Part of the conversation was a discussion about whether the cannabinoids could have an effect on the workplace drug tests.
The day after the purchase, Feb. 11, 2020, Beavers went to work and was asked to provide a urine sample and submit to random drug testing.
He received a letter Feb. 19, 2020, from the West Virginia Office of Miners’ Health, Safety & Training to notify him of a positive test and to inform Beavers that his surface coal miner certification was being suspended.
Beavers testified that he began crying because he had worked hard and was never around marijuana. He got clean reports in tests before and after this instance.
The Supreme Court majority opinion, in a footnote, acknowledged the miner’s circumstances.
“We are not unsympathetic to the claims of Respondent,” Justice Armstead wrote. “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.”
Beavers appealed the initial miners health board decision and initially represented himself before the Coal Mine Safety Board of Appeals.
The only witness at that lower-level appeal hearing was Dana Carasig, whose role included reviews of positive test results. She acknowledged that the testing cannot distinguish whether the THC metabolite detected was from smoking marijuana or from consuming a tainted CBD product.
The Coal Mine Safety Board of Appeals, in a 2-1 vote, sided with Beavers in a final order dated June 8, 2020. The board found that Beavers had consumed a cannabidiol product, that it is not a controlled substance and that it is lawfully sold as an over-the-counter product in West Virginia.
On Nov. 10, 2020, Kanawha Circuit Judge Tod Kaufman affirmed the appeals board ruling. The West Virginia Office of Miners’ Health, Safety and Training appealed to the state Supreme Court.
Justices John Hutchison and Alan Moats, sitting on temporary assignment, dissented. They wrote that the burden of proof was on the miners safety board and that the evidence presented in the case was flawed.
Hutchison wrote, “I understand that illicit drug use is rampant in West Virginia. I also sympathize with mining companies and other employers who are determined to maintain safe work sites. An impaired worker is a dangerous worker, and employers should be allowed to rely upon medical test results to secure the safety of their workplaces.
He continued, “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. This is a constitutionally provided benefit, and due process attaches to protect that benefit.”
A footnote in the dissent urged the Legislature to take another look at inconsistencies in the law.
“I encourage the Legislature to study and rectify this issue, because CBD products, contaminated with THC, are becoming common in the marketplace and accidental consumption of forms of THC are likely to become commonplace,” Hutchison wrote.
“There is a possibility that tests relied upon by OMHST do not necessarily distinguish between legal and illegal forms of THC. 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.”