CHARLESTON – The West Virginia Supreme Court has ruled that delays, no matter how significant, are not cause for overturning a ruling by the West Virginia Board of Examiners for Registered Professional Nurses.
In the State Supreme Court's ruling in Jonathan Lowell McClanahan, RN, v. West Virginia Board of Examiners for Registered Professional Nurses, it found that despite the defendant's prolonged delays in ruling on the plaintiff's appeal its ruling will stand.
In the case, McClanahan tested positive for marijuana in a pre-employment drug screen. This caused McClanahan's violation to be reported to the board for review, which concurred with the initial discovery that McClanahan had marijuana in his system and suspended his nursing license for one year. However, the suspension was stayed on the condition that he successfully completed a two-year probationary period. The probation also required McClanahan to comply with several terms and conditions, which included $2,000 in fines and administrative costs.
A little over a month later, he appealed to the Kanawha Circuit Court, which upheld the board's ruling. McClanahan followed by issuing a memorandum to the State Supreme Court asking for a review of the circuit court's ruling, including whether a five-month delay exceeded the acceptable time frame for the board to act.
While the State Supreme Court found that the lower court did not error in meriting the board’s order, it did stress that this is one of many admonishments it has had to issue to the board for its extensive delays.
The unfortunate frequency of these situations was a sentiment mirrored by Walter Auvil, secretary, Workplace Fairness.
"These sort of license suspensions because of positive drug tests are common, what drew the court's attention was the length of time it took for the board to rule on it," he told The West Virginia Record. "I've had to deal with similar issues when dealing with this same agency. In the case I worked on we couldn't get a hearing scheduled. It kept getting pushed back for one reason or another."
Auvil said that these kinds of delays can be remedied by filing a writ of mandamus to force the board to take action.
"In my case, it took months for the complaint to go forward and we had to use a writ of mandamus to force the issue," he said. "Of course over that time, my client was unable to get a job. As the court noted in its decision, this sort of thing is sadly common."
He said that cases such as Jonathan Lowell McClanahan, RN, v. West Virginia Board of Examiners for Registered Professional Nurses are very hard to successfully appeal because illegal drugs are involved. In fact, according to Auvil there is only room for contention is these sorts of cases when a drug screening finds a substance the accused has a prescription for.
"I recently sued the board in such a case, arguing that it was handicap discrimination," he said. "That is an example where the testing itself can be accurate but a lack of understanding on the employer's part is at fault rather than the accused."
