A three-member majority of the state Supreme Court upheld the mandatory six-month suspension for Bobby Beavers, a West Virginia coal miner who had taken a legal, over-the-counter sleep aid and then failed a mandatory, random workplace drug test the next day.
The justices upheld the original ruling by the state Office of Miners’ Health Safety and Training, after stating that state law doesn’t make a distinction in positive cases after the use of otherwise legal forms of cannabidiol, a compound found in cannabis.
“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 defence because it is a legal, over-the-counter product is misplaced,” Justice Tim Armstead stated in the ruling.
According to a section of state code relating to substance abuse screening, which was passed by the Legislature in 2012, employers in the coal mining industry are required to test certified and prospective certified employees for specific drugs and alcohol, including cannabinoids or THC, the main psychoactive ingredient in cannabis.
On Feb. 10, 2020, Mr. Beavers was recommended by his pharmacist to try a CBD product to address his sleep problems. Furthermore, the discussion with his pharmacists included the potential effects of CBD on workplace drug tests. The day after the purchase of the product, he was asked to provide a urine sample and submit to random drug testing at work at Onyx Energy.
On Feb. 19, 2020, Mr. Beavers received a letter from the West Virginia Office of Miners’ Health, Safety & Training notifying him of a positive test and that his surface coal miner certification was being suspended.
According to his testimony, Mr. Beavers began crying because he had worked hard and was never around cannabis, and had a record of negative drug test results before and after the incident.
In addition, the Supreme Court majority opinion acknowledged the miner’s circumstances in a footnote:
“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 defence to his positive drug test.”
Initially, Mr. Beavers had appealed the original miners’ health board decision and represented himself before the Coal Mine Safety Board of Appeals.
At the appeal hearing, the only witness present was Dana Carasig, whose role included reviews of positive test results. Ms. Carasig had acknowledged that the drug test used is not able to distinguish whether the THC metabolite detected was from smoking cannabis or from consuming a tainted CBD product.
The Coal Mine Safety Board of Appeals had sided with Beavers in a 2-1 vote in a final order dated June 8, 2020. The board concluded 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.
Subsequently, on Nov. 10, 2020, Kanawha Circuit Judge Tod Kaufman affirmed the appeals board ruling, and the West Virginia Office of Miners’ Health, Safety and Training appealed to the state Supreme Court.
In turn, Justices John Hutchison and Alan Moats dissented, writing that the burden of proof was on the miners’ safety board and that the evidence presented in the case was flawed.
Furthermore, they included a footnote in the dissent calling on 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,” Judge Hutchison wrote.
