H. B. 2069
(By Delegate Craig)
[Introduced January 12, 2011; referred to the
Committee on Energy, Industry and Labor, Economic Development and Small Business then the Judiciary.]
A BILL to amend and reenact §22A-1-1 and §22A-1-31 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new article, designated §22A-12-1, §22A-12-2, §22A-12-3, §22A-12-4, §22A-12-5, §22A-12-6, §22A-12-7, §22A-12-8, §22A-12-9, §22A-12-10, §22A-12-11, §22A-12-12, §22A-12-13 and §22A-12-14; and to amend and reenact §23-4-2 of said code, all relating generally to the creation and implementation of drug-free workplaces in coal mines; requiring Office of Miners’ Health Safety and Training to ensure drug-free workplaces in the mining industry; adopting procedures for the suspension or revocation of miners’ certification upon proof of confirmed positive drug tests; requiring breach of duty hearings to be held within twenty days; establishing process and conditions for reissuance of miners’ certification; authorizing Director of Office of Miners’ Health Safety and Training to require all operators to adopt drug-free workplaces programs at coal mines; assessment of fee for costs; requiring employers to pay for cost of drug tests for employees; providing for definitions; requiring all companies providing safety-sensitive services to mine operators to have drug-free workplace program for certain employees; providing immunity from wrongful discharge lawsuits for employers who implement program; implementing process for drug testing and appellate procedure; permitting the Office of Miners’ Health Safety and Training to require drug and alcohol test in serious mine accidents of certain persons; requiring alcohol and drug tests on all mine fatalities; requiring applicants for additional certifications to be certified drug free; ensuring substance abuse training; requiring minimum level of alcohol and substance abuse training and proof of being drug and alcohol free for certification; requiring proof of drug and alcohol free for applicants as apprenticeship miner or miner certification; requiring Office of Miners’ Health Safety and Training to provide drug testing program for apprentices; providing for cost reimbursement or acceptance of results of certain other drug tests; providing for confidentiality of drug test results and exemption from the West Virginia Freedom of Information Act; allowing for release by consent or compulsion by court order; establishing relevancy to legal claim asserted by applicant; prohibiting use of results in criminal proceedings against applicant; requiring substance abuse awareness training for emergency medical services personnel in mines; providing for severability; and modifying rights of certain employees to receive indemnity benefits and common law right to sue where accident proximately caused by employee's intoxication.
Be it enacted by the Legislature of West Virginia:
That §22A-1-1 and §22A-1-31 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new article, designated §22A-12-1, §22A-12-2, §22A-12-3, §22A-12-4, §22A-12-5, §22A-12-6, §22A-12-7, §22A-12-8, §22A-12-9, §22A-12-10, §22A-12-11, §22A-12-12, §22A-12-13 and §22A-12-14; and that §23-4-2 of said code be amended and reenacted, all to read as follows:
CHAPTER 22A. MINERS’ HEALTH, SAFETY AND TRAINING.
ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING; ADMINISTRATION; ENFORCEMENT.
§22A-1-1. Continuation of the Office of Miners' Health, Safety and Training; purpose.
(a) The Office of Miners' Health, Safety and Training is continued and is a separate office within the Department of Commerce, Labor and Environmental Resources. The office shall be administered, in accordance with the provisions of this article, under the supervision and direction of the Director of the Office of Miners' Health, Safety and Training.
(b) The Division of Health, Safety and Training shall have as its purpose the supervision of the execution and enforcement of the provisions of this chapter and, in carrying out the aforesaid purposes, it shall give prime consideration to the protection of the safety and health of persons employed within or at the mines of this state. To further preserve the safety and health of those persons, the Division of Health, Safety and Training shall ensure drug-free workplaces in the mining industry. In addition, the division shall, consistent with the aforesaid prime consideration, protect and preserve mining property and property used in connection therewith.
§22A-1-31. Withdrawal of certification.
(a) Charge of breach of duty. -- A mine inspector or the director may charge a mine foreman, assistant mine foreman, fireboss or any other certified person with neglect or failure to perform any duty mandated pursuant to this article or article two of this chapter. The charge shall state the name of the person charged, the duty or duties he or she is alleged to have violated, the approximate date and place so far as is known of the violation of duty, the capacity of the person making the charge, and shall be verified on the basis of information and belief or personal knowledge. The charge is initiated by filing it with the director or with the board of appeals. A copy of any charge filed with the board of appeals or any member thereof, shall be transmitted promptly to the director. The director shall maintain a file of each charge and of all related documents which shall be open to the public.
(b) Evaluation of charge by board of appeals. -- Within twenty days after receipt of the charge the board shall evaluate the charge and determine whether or not a violation of duty has been stated. In making such a determination the board shall evaluate all documents submitted to it by all persons to determine as nearly as possible the substance of the charge and if the board of appeals is unable to determine the substance of the charge it may request the director to investigate the charge. Upon request, the director shall cause the charge to be investigated and report the results of the investigation to the board of appeals within ten days of the director's receipt of the charge. If the board determines that probable cause exists to support the allegation that the person charged has violated his or her duty, the board by the end of the twenty-day period shall set a date for hearing which date shall be within eighty days of the filing of the charge: Provided, That if a certificate is being suspended or revoked because of a confirmed positive drug test, pursuant to the provisions of article twelve of this chapter, the charged party is entitled to a hearing within twenty days of the filing of the breach of duty charge. Notice of the hearing or notice of denial of the hearing for failure to state a charge and a copy of the charge shall be mailed by certified mail, return receipt requested, to the charging party, the charged party, the director, the representative of the miner or miners affected and to any interested person of record. Thereafter the board shall maintain the file of the charge which shall contain all documents, testimony and other matters filed which shall be open for public inspection.
(c) Hearing. -- The Board of Appeals shall hold a hearing, may appoint a hearing examiner to take evidence and report to the Board of Appeals within the time allotted, may direct or authorize taking of oral depositions under oath by any participant, or adopt any other method for the gathering of sworn evidence which affords the charging party, the charged party, the director and any interested party of record due process of law and a fair opportunity to present and make a record of evidence. Any member of the board shall have the power to administer oaths. The board may subpoena witnesses and require production of any books, papers, records or other documents relevant or material to the inquiry. The board shall consider all evidence offered in support of the charge and on behalf of the persons so charged at the time and place designated in the notice. Each witness shall be sworn and a transcript shall be made of all evidence presented in any such hearing. No continuance shall be granted except for good cause shown.
At the conclusion of the hearing the board shall proceed to determine the case upon consideration of all the evidence offered and shall render a decision containing its findings of fact and conclusions of law. If the board finds by a preponderance of the evidence that the certificate or certificates of the charged person should be suspended or revoked, as hereinafter provided, it shall enter an order to that effect. A confirmed positive drug or alcohol test result in violation of this chapter is good cause to suspend or revoke a certification. No renewal of the certificate shall be granted except as herein provided.
(d) Failure to cooperate. -- Any person charged who without just cause refuses or fails to appear before the board or cooperate in the investigation or gathering of evidence shall forfeit his or her certificate or certificates for a period to be determined by the board, not to exceed five years, and such certificate or certificates may not be renewed except upon a successful completion of the examination prescribed by the law for mine foremen, assistant mine foremen, firebosses or other certified persons.
(e) Penalties. -- The board may suspend or revoke the certificate or certificates of a charged party for a minimum of thirty days or more including an indefinite period or may revoke permanently the certificate or certificates of the charged party, as it sees fit, subject to the prescribed penalties and monetary fines imposed elsewhere in this chapter: Provided, That if a certificate is suspended or revoked pursuant to article twelve of this chapter, the charged party may not reapply for certification until at least three months have passed since the suspension or revocation: Provided, however, That the charged party must provide documentation of having successfully completed a substance abuse program and the charged party has tested drug and alcohol free, which test must be performed within thirty days of reapplication for certification.
(f) Integrity of penalties imposed. -- No person whose certification is suspended or revoked under this provision can perform any duties under any other certification issued under this chapter, during the period of the suspension imposed herein.
(g) Any party adversely affected by a final order or decision issued by the board hereunder is entitled to judicial review thereof pursuant to section four, article five, chapter twenty-nine-a of this code.
ARTICLE 12. DRUG-FREE WORKPLACES IN WEST VIRGINIA MINES.
§22A-12-1. Legislative findings, purposes and intent.
The Legislature hereby finds and declares:
(a) That the Supreme Court of Appeals of West Virginia recognized that the drug testing of employees will not violate public policy grounded in the potential intrusion of a person's right to privacy where it is conducted by an employer based upon a reasonable good faith objective suspicion of an employee's drug usage, where an employee's job responsibility involves public safety or the safety of others; and in preemployment/post-offer testing of new hires;
(b) That according to the 2002 National Survey on Drug Use and Health (NSDUH) conducted by the Federal Department of Health and Human Services - Substance Abuse and Mental Health Services Administration (HHS-SAMSHA), the following findings were made regarding drug and alcohol abuse in the workplace: Eight point nine percent of the population aged twelve or older were current illicit drug users; that one third of the persons who reported using marijuana reported that they had used it on twenty or more days in the past month; that almost three percent of the population were nonmedical users of cocaine, hallucinogens and psychotherapeutic drugs; that of the illicit drug users aged eighteen or older in 2002, seventy-four point six percent were employed; that nineteen percent of the national workforce who died on the job, who were drug or alcohol tested, tested positive for drugs or alcohol at the time of their death; that the highest percentage of workers reporting alcohol and drug abuse were in the mining and construction industries, with fifteen point seven percent of that sector reporting heavy alcohol use in the past month at the time of the survey and twelve point three percent reporting that they had used illicit drugs in the month preceding the survey;
(c) That employees in the mining industry have job responsibilities involving their own safety and the safety of their fellow miners and that all of West Virginia's miners deserve a drug-free workplace;
(d) That many mine operators recognize that the use of illegal drugs and being under the influence of alcohol while working in the mining industry represents a serious threat to the health and safety of all miners;
(e) That many mine operators in West Virginia have taken steps to improve mine safety at their particular mines by establishing drug testing programs to ensure that miners are able to perform their jobs free from the influence of illegal drugs or being under the influence of alcohol while working and that persons who have tested positive for illegal drugs and have been discharged are able to simply begin working for another employer, thereby endangering the safety of persons at their new place of employment; and
(f) That instituting drug-free workplace programs in coordination with the Office of Miners' Health, Safety and Training and its licensing and certification powers, will help ensure a safer workplace for all miners in West Virginia.
§22A-12-2. Additional powers of the Office of Miners’ Health, Safety and Training.
(a) In addition to the other powers provided in this chapter, the Director of the Office of Miners' Health, Safety and Training is hereby authorized to:
(1) Require the implementation of drug-free workplace programs as provided in this article; and
(2) Assess a reasonable fee of all persons seeking certification pursuant to the provisions of this chapter which fee shall be used solely to pay for the costs of administering the drug-free workplace provisions provided herein. The director shall annually set the amount of such fee.
The following definitions apply to the provisions of this article:
(a) "Alcohol" means ethyl alcohol, ethanol, hydrated oxide of ethyl or spirits of wine, from whatever source or by whatever process produced.
(b) "Drug and Alcohol Free" means testing negative on any certified drug and alcohol test, which shall be in accordance with subsection (d) of this section.
(c) "Discharge for positive drug or alcohol test" means the good faith discharge or termination from employment of an employee who tests positive on a confirmed substance abuse test, refuses to take a test or adulterates a specimen for testing under a drug-free workplace program.
(d) "Drug and alcohol testing" means any screen for drugs which includes, at a minimum: Alcohol, amphetamines, cannabinoids (THC), cocaine, opiates and phencyclidine. Employers may use additional drug screens. All specimens must be certified by a Substance Abuse and Mental Health Services Administration (SAMHSA) or Federal Department of Transportation (DOT)certified lab and threshold detection levels of drugs and alcohol shall be in accordance with SAMHSA or College of American Pathologists-Forensic Urine Drug Testing (CAP-FUDT) guidelines.
(e) "Drug-free Workplace Program" is a private employer program which includes written policies prohibiting safety sensitive employees working in, on or around coal mines to be under the influence of illegal drugs or alcohol at work and which requires substance abuse testing and employee confidentiality provisions. Testing of employees under this program shall be at the expense of the employer.
(f) "Illegal drugs" means amphetamines, barbituric acid, lysergic acid, diethylamide, cannabinoids, cocaine, phencyclidine (PCP), methadone, methaqualone, opiates, barbituates, benzodiazepines propoxyphene or a metabolite of any of these substances or any other substance which is unlawful under the Controlled Substances Act and has not been prescribed by the employee's treating physician or is present in excess of therapeutic level.
(g) “Medical Review Officer” means a licensed physician trained in the field of alcohol and drug testing who provides medical assessment of positive test results, requests reanalysis if necessary and makes a determination whether or not alcohol or illegal drugs use has occurred based on the test specimen and applying the Substance Abuse and Mental Health Services Administration's (SAMSHA) Medical Review Officer Manual and the Mandatory Guidelines for Federal Workplace Drug Testing Programs (69 F.R. 19653 et seq.), DOT or CAP-FUDT guidelines.
(h) "Safety Sensitive" means: (1) Any position in a mining operation where that person's impaired performance may, directly or indirectly, result in an incident affecting the health and safety of the employees, coworkers, customers, customer employees, the public or damage to property or the environment, including, but not limited to, those positions, the duties of which require the employee, regularly or from time to time, to be in an area of a mine or other facility containing operating or mechanical equipment where the employee's actions or failure to act could result in such incident; or (2) those positions which include responsibility for the engineering, inspection, construction, operation or maintenance of equipment/machinery or employee safety where the employee's actions or failure to act could result in such incident; or (3) executive, managerial or supervisory positions with direct or indirect supervision of employees who would be considered safety-sensitive under this policy.
(i) “Substance abuse” is the use of illegal drugs or being under the influence of alcohol while at work with a blood alcohol concentration of four tenths of one percent or greater.
(j) "Testing positive" means a drug or alcohol test result from a SAMHSA or DOT certified lab at threshold detection levels or greater as set forth in the SAMHSA, DOT or CAP-FUDT guidelines, referred to in this article.
§22A-12-4. Drug-free workplace programs.
(a) All mine operators shall create drug-free workplace programs covering all employees in safety-sensitive positions;
(b) All companies providing safety-sensitive services to mine operators shall create drug-free workplace programs covering all of their employees who perform safety-sensitive work for a mine operation;
(c) Any mine operator whose worksite has specific safety hazards necessarily encountered by employees traveling on mine property, may, at its option and as a business necessity, create drug-free workplace programs covering all employees, consistent with drug and alcohol testing allowed under the Americans With Disabilities Act.
(d) Employers who implement drug-free workplace programs under this article cannot be sued for the good faith discharge of an employee whose confirmed drug test is positive for drugs or alcohol while working in, on or around coal mines in West Virginia, or who discharge for an employee's refusal to take a test or where there is evidence of an adulterated specimen. Notwithstanding any other provision in this code to the contrary, the Board of Appeals does not have the authority to reinstate a discharged employee to a previously held private sector job, where that discharge was the result of a confirmed positive drug or alcohol test.
§22A-12-5. Positive drug tests as breach of duty.
(a) Breach of duty -- If a mine foreman, assistant mine foreman, fireboss or any other person certified under this chapter undergoes a drug test administered by his or her employer, where there is a confirmed positive illegal drug test result as defined in subsections (d) and (f), section three of this article or for a blood alcohol concentration of four tenths of a percent or greater while working or an employee refuses a test or there is evidence of an adulterated specimen, it is hereby deemed a breach of duty: Provided, That for the purposes of this section, any drug test administered by an operator shall be administered in accordance with the provisions of subsection (d), section three of this article and be performed pursuant to a drug free workplace program as defined in subsection (e) of section three of this article.
(b) Charge of breach of duty -- Upon receipt of a confirmed positive drug test result, a refusal to take a test or evidence of an adulterated specimen the operator or employer shall report such information to the director within seven days, who shall promptly file a charge of breach of duty with the board of appeals. The director shall maintain a file of each charge and of all related documents which shall be open to medical review officers. The Board of Appeals shall evaluate a charge filed under this section and conduct a hearing in accordance with the requirements and guarantees of section thirty-one, article eight of this chapter. A confirmed positive test for illegal drugs or an alcohol test showing a blood alcohol concentration of four tenths of a percent or greater while working, the refusal to take a drug test or the adulteration of a specimen are all good cause to suspend or revoke a certification.
§22A-12-6. Drug testing in connection with mine accidents.
(a) The Office of Miners' Health, Safety and Training may require drug and alcohol testing of persons who are or have been on mine property to determine whether the presence of alcohol or illegal drugs are a potential contributing factor in any mine accident in which serious physical injury or loss of life occurs. Any accident reportable under section sixty-six, article two of this chapter shall be a mine accident for which the Office of Miners' Health, Safety and Training may require such drug and alcohol testing.
(b) The director or his or her designee may order testing of all persons who: (1) Were working in the immediate area of the accident; or (2) in the judgment of the director or his or her designee, may reasonably have contributed to or witnessed the accident or fatality.
(c) The post-accident testing permitted by this section shall: (1) Meet all guidelines set forth in subsections (d) and (f), section three of this article; (2) be paid for by either the employer or the Office of Miners' Health, Safety and Training; and (3) be performed on samples obtained within eight hours of the accident.
(d) Any confirmed positive test results required by this section shall be provided to the employer of the person tested under this section.
(e) Alcohol and an eleven-panel drug testing shall be performed on victims when death occurs on mine property. The testing pursuant to this subsection may be performed on specimens of either blood, saliva, or other appropriate bodily fluids and in accordance with the provisions of subsections (d) and (f), section three of this article. Confirmed positive test results shall be provided to the employer of any victim tested pursuant to this section.
§22A-12-7. Additional requirements for certification.
(a) In addition to the requirements contained in article eight of this chapter, the Board of Miner Training, Education and Certification shall require all miners in training and current miners, whether surface or underground, and all safety-sensitive persons regularly working in or around coal mines, to be certified free from the use of alcohol or illegal drugs while working.
(b) The board shall ensure that substance abuse training and education, including an explanation of an employer's drug-free workplace program, be required as part of the certified miner's annual retraining conducted in a class room after August 1, 2011: Provided, That this requirement shall not apply to certified persons who received the one hour initial substance abuse training and education as part of their eighty-hour new miner training. In addition to the training required of all certified miners, supervisory personnel shall be required to receive additional alcohol and substance abuse awareness training annually to include information regarding the signs of being under the influence of drugs or alcohol and their employer's drug-free workplace program.
§22A-12-8. Drug-free status required for certification.
In addition to any other requirements for certification imposed by the provisions of article eight of this chapter, any applicant for a permit of apprenticeship-underground miner, a permit of apprenticeship-surface miner or a certificate of competency and qualification pursuant to sections three, four and six of this article, shall submit proof of his or her drug-free status and undergo at least one hour of classroom training dedicated to alcohol and substance abuse training.
§22A-12-9. Office of Miners' Health, Safety and Training Drug Testing Program.
(a) The office shall provide a drug testing program for all applicants for a permit of apprenticeship-underground miner, a permit of apprenticeship-surface miner, a certificate of competency and qualification, and certification as a mine foreman or fireboss.
(b) The minimum testing protocol for any test administered under the drug testing program shall be an 11 panel urine test that shall test for the following substances: Amphetamines, cannabanoids/THC, cocaine, opiates, phencyclidine (PCP), benzodiazepines, propoxyphene, methaqualone, methadone, barbiturates, and synthetic narcotics and for blood alcohol concentration at four tenths of a percent or greater.
(c) All drug tests shall be administered in accordance with the standards, procedures and protocols for collection and testing as referred to in subsection (d) of this section.
(d) The results of any drug test shall be evaluated by a medical review officer in accordance with the requirement and procedures set forth in the Substance Abuse and Mental Health Services Administration's Medical Review Officer Manual and the Mandatory Guidelines for Federal Workplace Drug Testing Programs. (69 F.R. 19653 et seq.)
(e) The office may contract with private entities to administer the required drug tests: Provided, That any testing administered by such a company must meet the minimum requirements of subsection (d), section three of this article.
(f) The costs of any drug test administered by the office shall be paid for by the applicant: Provided, That any fees charged by the office shall not exceed the office's actual cost of collection, analysis and evaluation: Provided, however, That if an applicant is granted certification and subsequently obtains employment by an operator or if that certified miner applies and receives an additional certification, the applicant's employer shall reimburse the applicant for the cost of one drug test per certification obtained herein.
§22A-12-10. Other drug testing programs.
The director may accept the results of a drug test from entities other than those retained by the office under the following conditions:
(a) The applicant shall submit a written request to the director for the acceptance of the results of a drug test that has been administered within the thirty days immediately preceding the request;
(b) The test shall be administered by a laboratory certified in accordance with this provision referred to subsection three (d) of this article; and
(c) The test shall meet the minimum requirements set forth in subsections (b), (c) and (d), section nine of this article.
§22A-12-11. Results; retesting; appeal.
(a) The results of a drug test administered by the Office of Miners’ Safety and Training shall be provided to the applicant at the time that the office notifies the applicant of the granting or refusal of the application.
(b) Any application for a permit of apprenticeship-underground miner; a permit of apprenticeship-surface miner, a certificate of competency and qualification, or certification as a mine foreman or fireboss shall be refused if any one of the following conditions occur:
(1) The applicant's positive drug tests, as defined in subsections (d) and (f), section three of this article are deemed to fail by a medical review officer;
(2) The applicant's drug test results demonstrate the submission of an adulterated specimen; or
(3) The applicant refuses to submit to a drug test as required by section nine of this article.
(c) Any applicant who is refused a permit of apprenticeship or certification due to the results of his or her drug test may request a second test, to be administered at the applicant's expense, by submitting a written request to the director within ten days of receiving the results of the initial drug test: Provided, That any applicant that is refused a permit of apprenticeship or certification due to the results of a second drug test may not reapply for a permit of apprenticeship or certification until at least three months have passed since the initial refusal, the applicant has successfully completed a substance abuse program and has submitted proof of his or her drug-free status in accordance with the provisions of this article.
(d) Any applicant aggrieved by an action of the director in failing or refusing to issue a certificate of qualification and competency may, within ten-days' notice of the action complained of, appeal to the director pursuant to the provisions of section seven of this article.
§22A-12-12. Confidentiality of results.
(a) Records of drug or alcohol test results, written or otherwise, received by the Office of Miners' Health, Safety and Training, its contractors, subcontractors, or other employees are confidential communications and exempt from disclosure under article one of chapter twenty-nine-b of this code except as follows:
(1) Where release of the information is authorized solely pursuant to a written consent form signed voluntarily by the person tested, the consent form shall contain the following: (A) The name of the person who is authorized to obtain the information; (B) the purpose of the disclosure; (C) the precise information to be disclosed; (D) the duration of the consent; and (E) the signature of the person authorizing the release of the information; or
(2) Where the release of the information is compelled by a hearing officer or court of competent jurisdiction pursuant to an appeal taken under section nine, article one, chapter twenty-two-b of this code;
(3) Where release of the information is relevant to a legal claim asserted by the applicant;
(4) Where the information is used by the entity conducting drug or alcohol testing when consulting with legal counsel in connection with matters brought under or related to section one, article two-b, chapter twenty-two-a, et seq. of this code; or in its defense of civil or administrative actions related to the testing or results; or
(5) Where release of the information is deemed appropriate by the Office of Miners' Health, Safety and Training or a court of competent jurisdiction in disciplinary proceeding brought under the terms of section five of this article.
(b) Information on positive illegal drug and alcohol test results for tests administered pursuant to this article shall not be released or used in any criminal proceeding against the applicant.
§22A-12-13. Additional training of emergency personnel in coal mines.
Notwithstanding any provision to the contrary, the training of the emergency medical services personnel employed at certain mines pursuant to the provisions of article ten of this chapter must also include substance abuse training as well as alcohol and substance abuse awareness training to assist such personnel in the ready identification of the symptoms of intoxication.
If any provision of this article or application thereof to any person or circumstance is held invalid, the invalidity does not effect other provisions or applications of the article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.
CHAPTER 23. WORKERS’ COMPENSATION.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-2. Disbursement where injury is self-inflicted or intentionally caused by employer; legislative declarations and findings; "deliberate intention" defined.
(a) Notwithstanding anything contained in this chapter, no employee or dependent of any employee is entitled to receive any sum from the Workers' Compensation Fund, from a self-insured employer or otherwise under the provisions of this chapter on account of any personal injury to or death to any employee caused by a self-inflicted injury or the intoxication of the employee. Employees who work for an employer and who are covered by a drug-free workplace program implemented under the state's mine safety laws under chapter twenty-two-a and who test positive for drugs or alcohol following a work related accident shall be presumed to be intoxicated. These employees testing positive for drugs and alcohol and who are therefore intoxicated at the time of the work related accident shall lose their right to receive indemnity benefits from the Workers' Compensation Program and any common law rights to sue the employer for damages where the accident was proximately caused by the employee's intoxication: Provided, That such injured employees shall remain eligible for payment of medical benefits for the treatment of any injuries incurred on the job, regardless of testing positive for drugs or alcohol.
Upon the occurrence of an injury which the employee asserts, or which reasonably appears to have, occurred in the course of and resulting from the employee's employment, the employer may require the employee to undergo a blood test for the purpose of determining the existence or nonexistence of evidence of intoxication pursuant to rules for the administration of the test promulgated by the board of managers: Provided, That the employer must have a reasonable and good faith objective suspicion of the employee's intoxication and may only test for the purpose of determining whether the person is intoxicated.
(b) For the purpose of this chapter, the commission may cooperate with the Office of Miners' Health, Safety and Training and the State Division of Labor in promoting general safety programs and in formulating rules to govern hazardous employments.
(c) If injury or death result to any employee from the deliberate intention of his or her employer to produce the injury or death, the employee, the widow, widower, child or dependent of the employee has the privilege to take under this chapter and has a cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable in a claim for benefits under this chapter, whether filed or not.
(d) (1) It is declared that enactment of this chapter and the establishment of the Workers' Compensation System in this chapter was and is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as expressly provided in this chapter and to establish a system which compensates even though the injury or death of an employee may be caused by his or her own fault or the fault of a coemployee; that the immunity established in sections six and six-a, article two of this chapter is an essential aspect of this Workers' Compensation System; that the intent of the Legislature in providing immunity from common lawsuit was and is to protect those immunized from litigation outside the Workers' Compensation System except as expressly provided in this chapter; that, in enacting the immunity provisions of this chapter, the Legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial resolution of the question of whether a suit prosecuted under the asserted authority of this section is or is not prohibited by the immunity granted under this chapter.
(2) The immunity from suit provided under this section and under sections six and six-a, article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with "deliberate intention". This requirement may be satisfied only if:
(i) It is proved that the employer or person against whom liability is asserted acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of an actual, specific intent and may not be satisfied by allegation or proof of: (A) Conduct which produces a result that was not specifically intended; (B) conduct which constitutes negligence, no matter how gross or aggravated; or (C) willful, wanton or reckless misconduct; or
(ii) The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proven:
(A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
(B) That the employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;
(C) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and
(E) That the employee exposed suffered serious compensable injury or compensable death as defined in section one, article four, chapter twenty-three, whether a claim for benefits under this chapter is filed or not as a direct and proximate result of the specific unsafe working condition.
(iii) In cases alleging liability under the provisions of paragraph (ii) of this subdivision:
(A) No punitive or exemplary damages shall be awarded to the employee or other plaintiff;
(B) Notwithstanding any other provision of law or rule to the contrary, and consistent with the legislative findings of intent to promote prompt judicial resolution of issues of immunity from litigation under this chapter, the court shall dismiss the action upon motion for summary judgment if it finds, pursuant to rule 56 of the rules of civil procedure that one or more of the facts required to be proved by the provisions of subparagraphs (A) through (E), inclusive, paragraph (ii) of this subdivision do not exist, and the court shall dismiss the action upon a timely motion for a directed verdict against the plaintiff if after considering all the evidence and every inference legitimately and reasonably raised thereby most favorably to the plaintiff, the court determines that there is not sufficient evidence to find each and every one of the facts required to be proven by the provisions of subparagraphs (A) through (E), inclusive, paragraph (ii) of this subdivision; and
(C) The provisions of this paragraph and of each subparagraph thereof are severable from the provisions of each other subparagraph, subsection, section, article or chapter of this code so that if any provision of a subparagraph of this paragraph is held void, the remaining provisions of this act and this code remain valid.
(e) The reenactment of this section in the regular session of
the Legislature during the year 1983, does not in any way affect
the right of any person to bring an action with respect to or upon
any cause of action which arose or accrued prior to the effective
date of the reenactment.
(f) The amendments to this section enacted during the 2005 session of the Legislature shall apply to all injuries occurring and all actions filed on or after July 1, 2005.
NOTE: The purpose of this bill is to expand the number of mine employees who may be tested for drug or alcohol abuse by requiring all mine operators to create drug-free workplace programs applicable to safety-sensitive employees on mine property. Safety sensitive employees are defined to include engineering and certain operational staff. It would also require vendors providing such employees to implement the same program. The bill also allows employers who discharge employees who test positive to be immune from wrongful discharge lawsuits. The bill requires the suspension of mining certifications for positive confirmed drug tests and provides a mechanism for the reinstatement of certificates upon meeting minimum requirements of being drug free. In addition, the bill proposes minimum drug and alcohol awareness educational requirements for miners and emergency services personnel in mines. The bill also provides that employees who test positive lose the right to receive indemnity benefits and common law right to sue.
§22A-12 is new; therefore, it has been completely underscored.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.