A West Virginia coal miner’s two-year legal battle over a CBD sleep aid and a positive drug test has come to a head after the state’s highest court ruled his six-month suspension from work was justified.
In a 3-2 split, the West Virginia Supreme Court of Appeals determined state law doesn’t differentiate between legal and illegal forms of THC when it comes to workplace drug testing for jobs that require state certifications — specifically those in the coal mining industry.
The opinion filed April 26 overturns a lower court decision that found coal miner Bobby Beavers consumed a legal over-the-counter product — not a controlled substance — and therefore his certifications should not have been suspended.
“If the West Virginia Legislature had desired to permit CBD use as a defense to a positive drug test, it could have done so, either at the time it passed the original testing statute, or when it authorized the sale of CBD products, but it has clearly not recognized any such CBD use defense,” Justice Tim Armstead said in the high court’s opinion.
“It is simply not within our purview to act as a ‘superlegislature’ and impose any such defense,” he added.
A lawyer representing Beavers and representatives from the West Virginia Office of Miners’ Health, Safety and Training, which filed the appeal, did not immediately respond to McClatchy News’ request for comment on Thursday, April 28.
Distinguishing between THC, CBD
Beavers works for the oil and gas company Onyx Energy LLC and lives in Bluefield, West Virginia, a town of roughly 10,000 people nestled on the Virginia state line.
According to Judge Tod J. Kaufman’s opinion filed in the Circuit Court of Kanawha County, Beavers was prescribed pain medication at some point in his life that resulted in an addiction to opioids. He got clean through a drug rehabilitation and counseling program in which he participates in group therapy and regular drug testing, Kaufman said.
At the time of his positive drug test in February 2020, Beavers had reportedly been part of the program for six years and never failed a drug test.
On Feb. 10, 2020, Beavers spoke to a local pharmacist about his trouble sleeping. Court documents state that the pharmacist suggested he try a cannabidiol, otherwise known as CBD oil, called Optivida Hemp Extract 540.
Beavers reportedly expressed some concern over whether it would affect his drug tests.
“I asked plainly, I said, now, this won’t mess with my treatment or drug screens or anything, because I have to take one every month, and he said, no, he said, you won’t have no issues out of it,” Beavers later testified.
The next day at work, Beavers took a drug test that came back positive for tetrahydrocannabinol, or THC, the primary substance responsible for the “high” in marijuana. Just two days prior, on Feb. 9, 2020, Beavers had passed a drug test, court documents state.
The state Office of Miner’s Health, Safety and Training told Beavers his mining certifications would be suspended for six months as a result of the positive drug test — a decision Beavers appealed.
During a hearing before the Coal Mine Safety Board of Appeals in April 2020, a medical review officer reportedly testified that the drug screening process cannot distinguish between CBD — which is legal in West Virginia — and THC.
The board of appeals subsequently ruled that Beavers had used a legal, over the-counter-product and permitted him to return to work. The Circuit Court of Kanawha County affirmed that decision on appeal in November that year.
“A test result that is positive for THC may actually mean CBD was detected, but due to the limitations of the testing system, this distinction cannot be made,” the circuit court judge said. “A coal miner who consumes a legal product containing CBD should not lose his or her job simply because the drug testing performed is incapable of distinguishing between CBD and THC.”
The West Virginia Supreme Court disagreed.
CBD not a valid defense
According to the high court’s 26-page majority opinion, Beavers’ use of a legal CBD product is not a valid defense in the face of a state statute that requires certified employees in the mining industry to submit to random drug screenings.
CBD is legal in West Virginia, but the justices said that particular statute governing drug screenings for coal miners has not been amended to include CBD as a defense.
“Respondent’s argument that his use of a CBD product is a defense because it is a legal, over-the-counter product is misplaced,” the supreme court said.
Citing an alcohol testing provision also included in the statute, the justices said the fact that CBD is legal does not bar it from inclusion in the law.
“As alcohol is also a legal product, the statute clearly tests for legal products,” they said. “Respondent has cited no legal authority that would support his position that the mere fact that CBD is not, per se, illegal means that it can be asserted as a defense to a positive THC testing result.”
The state supreme court said it was “not unsympathetic” to Beavers’ plight. But the justices said if his defense were to stand, every miner who fails a drug test could avoid suspension by “simply arguing that he or she used a CBD product.”
At the heart of the matter, they said, is whether his drug test was valid.
“Respondent has attempted, through the numerous defenses he has asserted, to shift the focus from the simple question on which this case rests: did he have a valid positive cannabinoids/THC test result?” the state supreme court said. “The answer to that question is yes.”
Chief Justice John A. Hutchison, joined by Justice Alan D. Moats, penned a scathing dissent.
While he agreed with the majority that Beavers’ lack of intent to consume a THC product was not a valid defense, Hutchison said his colleagues in the majority both unfairly put the burden of proof on Beavers to determine whether his test results were valid and chided him for not having a lawyer during the early stages of the case.
“Mind you, thanks to (the) suspension of his miner’s certificates, Mr. Beavers was unemployed and facing six months without work, with a pregnant wife and two young children at home,” he said in the dissent. “Under these circumstances, I can only say that the majority opinion’s suggestion that Mr. Beavers should have hired a lawyer and paid cash … is unfair and unrealistic.”
Hutchison also encouraged the state legislature to consider including CBD products as a valid defense to positive drug tests in the future.
“CBD products, contaminated with THC, are becoming common in the marketplace and accidental consumption of forms of THC are likely to become commonplace,” he said.
According to Hutchison, that means tests that don’t distinguish between the two will result in “miners being punished for engaging in perfectly legal activity.”
