CHARLESTON — The West Virginia Supreme Court reinstated a decision regarding a six-month suspension for a Bluefield coal miner after he failed a drug test for taking a legal, over-the-counter treatment.
Justice Tim Armstead delivered the majority opinion. Justice Alan D. Moats and Chief Justice John Hutchison dissented.
"Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that the circuit court erred in affirming the Board’s decision reinstating Respondent’s mining certifications following his positive drug test," the majority said in the April 26. "We, therefore, reverse the circuit court’s Final Order entered on November 10, 2020, and remand this action to the circuit court with direction to reinstate the suspension of the Respondent’s mining certifications as imposed by the OMHST."
On Nov. 10, 2020, Kanawha Circuit Court entered a final order affirming a decision of the Coal Mine Safety Board of Appeals affirming a decision to reinstate Bobby Beavers' mining certifications following a random substance abuse drug and alcohol test in which he tested positive for marijuana metabolites — specifically Carboxy-THC.
"Respondent argues that his positive drug test resulted from his use of cannabidiol oil on the day prior to the test," Justice Tim Armstead wrote in the majority opinion. "The West Virginia Office of Miners’ Health, Safety and Training argues that CBD use is not a defense to Respondent’s positive test. Both the Board and the circuit court were persuaded by Respondent’s argument that he used CBD oil and that Respondent’s test did not differentiate between CBD and THC."
Beavers underwent a random drug test on Feb. 11, 2020, and provided his urine sample, which responded with a positive result for CBD/THC. Beavers was suspended temporarily and appealed the suspension, arguing that he was misled by a pharmacist who sold him CBD oil.
Beavers contended that due to a pain medicine addiction to prescription opioids, he had been in treatment for several years and was subject to drug testing. He was tested on Feb. 9, 2020, which was negative, and on Feb. 10, 2020, he went to BlueWells Family Pharmacy and spoke with a pharmacist about sleeping issues and was assured that CBD oil would not result in a positive test for THC.
The board ruled that Beavers had "consulted with a pharmacist in an effort to determine whether consuming this particular product would show positive on a drug screen and was assured it would not," and it reinstated his mining certification. However, OMHST appealed the decision to Kanawha Circuit Court, which denied the appeal.
OMHST then appealed to the state Supreme Court.
"West Virginia Code...clearly requires the Board to suspend mining certifications 'for a minimum of six months' if a certified person is 'determined to have a positive drug or alcohol test as determined pursuant to the provisions of this article," Armstead wrote. "The Board clearly failed to follow this directive. For the reasons set forth above, the circuit court erred in affirming the Board’s decision."
The Supreme Court reinstated the suspension.
In the dissenting opinion, Hutchison, who wrote on his and Moats' behalf, argued that the majority has "rewritten state law" and imposed a "bureaucratic mindset that violates the fundamental principles of due process."
The reality is that this case isn’t about a workplace safety decision, Hutchison wrote in his opinion. He contends it 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," Hutchison wrote. "The case before the Court has no bearing on an employer’s right to maintain safety. Shifting the burden of proof onto the miner, and rewriting state law to create a presumption that the government’s evidence is always right and probative, turns due process and fairness on its head."
West Virginia Supreme Court of Appeals case number: 20-0973
