H. B. 2071
(By Delegate Frederick)
[Introduced January 9, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto two new sections, designated §22A-2-57a and
§22A-2-57b, all relating to mandatory drug and alcohol testing
of miners.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto two new sections, designated §22A-2-57a and
§22A-2-57b, all to read as follows:
ARTICLE 2. UNDERGROUND MINES.
§22A-2-57a. Mandatory drug and alcohol testing program for
miners; legislative findings; situations resulting
in testing; return-to-work procedures;
promulgation of rules.
(a) As part of the state regulatory program for mine safety,
the director shall establish a mandatory drug and alcohol testing program for miners which will be implemented by operators. The
Legislature finds that coal miners are involved in the performance
of safety-sensitive work in which impairment from drugs or alcohol
would threaten the health or safety of the impaired miner, other
miners or other employees at the mine. The Legislature further
finds that drug testing of miners is not an invasion of privacy.
(b) The mandatory drug and alcohol testing program shall
require all miners to submit to split sampled drug and alcohol
testing under the following situations:
(1) Preemployment testing as a condition of employment;
(2) Post-accident testing of miners in the immediate vicinity
of an accident at a coal mine;
(3) Return-to-work testing as set out in subsections(c)and (d)
of this section;
(4) If a reasonable suspicion exists that the miner is
impaired from drugs or alcohol;
(5) During random testing done pursuant to the rules
promulgated according to this section; and
(6) During random testing for those miners with previous
positive drug or alcohol test results.
(c) The mandatory drug and alcohol testing program shall
include return-to-work procedures for miners who have worked at the
mine for ninety days or longer and who tested positive for drugs or
alcohol in any of the situations set out in subsection (b) of this section. The operator has the discretion, in lieu of instituting
return-to-work procedures, to terminate a miner who has worked at
the mine for ninety days or longer. Miners employed less than
ninety days shall be considered under probation, and may be
terminated if the miner tests positive for drugs or alcohol
pursuant to subsection(b) of this section.
(d) Return-to-work procedures, at minimum, shall require:
(1) For miners who have been employed at the mine for ninety
days or longer, operators shall provide an Employee Assistance
Program (EAP) for the benefit of such miners or the operators may
contract with a private licensed professional to provide drug and
alcohol treatment to such miners, in lieu of providing the Employee
Assistance Program. Before a miner who has worked at the mine for
ninety days or longer may return to work, an authorized
representative of the Employee Assistance Program or the private
licensed professional shall provide the employer with a
"fitness-for-duty" evaluation; and
(2) A negative result on a drug and alcohol test as prescribed
in this section.
(e) Within ninety days after the effective date of this
section, the Board of Coal Mine Health and Safety shall promulgate
rules for operators to follow in the implementation of the
mandatory drug and alcohol testing program, determine maximum
allowable concentrations for drugs and alcohol in test samples, develop complete return-to-work procedures, and procedures for
retesting of split samples.
§22A-2-57b. Procedures for mandatory drug and alcohol testing
program; education on program; refusal to comply;
grounds for removal or termination; record keeping;
consent forms; retest of split sample.
(a) An applicant for a position as a miner shall submit to a
mandatory split sampled drug and alcohol test administered by the
operator of the mine to which the miner is applying for work and
the applicant shall obtain a negative test result before beginning
work at the mine.
(b) The mandatory drug and alcohol split sampled tests shall,
at a minimum, screen for concentrations of alcohol, and the
following controlled substances:
(1) Marijuana metabolites;
(2) Cocaine metabolites;
(3) Phencyclidine;
(4) Amphetamines; and
(5) Opiate metabolites.
(c) The Board of Coal Mine Health and Safety shall promulgate
rules to establish impermissible concentrations for drugs and
alcohol and shall compile a list of laboratories certified by the
National Laboratory Certification Program of the United States
Department of Health and Human Services that perform drug and alcohol testing services that shall be available to operators.
Operators may contract with these certified laboratories to collect
samples, perform analysis and medical reviews of the laboratory
results in conformance with this section and any rules promulgated
hereto.
(d) All drug and alcohol testing shall be at the expense of
the operator.
(e) An operator shall provide new and current miners with
information and training about the mandatory drug and alcohol split
sample testing program before the implementation of the program.
Each operator shall inform miners of their rights and
responsibilities under the program and that refusal to comply with
testing shall constitute grounds for immediate termination of
employment.
(f) An operator shall immediately remove, and may terminate or
permit enrollment in an Employee Assistance Program, a miner who
tests positive for:
(1) Any of the controlled substances listed in subsection(b)
of this section; or
(2) Concentrations of alcohol greater than the maximum
allowable concentrations set forth in the rules.
(g) An operator may not allow a nonprobationary employee who
tests positive for drugs or alcohol to resume responsibilities
until he or she:
(1) Successfully completes a return-to-work program; and
(2) Tests negative on a subsequent drug and alcohol test.
(h) The operator shall maintain records of drug and alcohol
tests for individual miners which shall be kept confidential,
except that the records shall be open to inspection by the director
or his or her representative or when compelled by a court of
competent jurisdiction.
(i) Drug and alcohol test records are not subject to
inspection by the public pursuant to the West Virginia Freedom of
Information Act, §29B-1-1. Operators shall maintain records for a
minimum of five years of verified positive drug or alcohol tests,
miner refusals to take mandatory tests, and fitness for duty
evaluations.
(j) No operator or miner shall alter or disregard the results
of a drug and alcohol test or alter a specimen obtained for the
purposes of drug and alcohol testing.
(k) An operator may require miners to sign forms consenting to
the mandatory drug and alcohol testing requirements as a condition
of employment, and may place a nonprobationary miner on leave or
terminate any probationary or nonprobationary miner who refuses to
take a mandated drug and alcohol test.
(l) Any miner that is aggrieved by an action of the operator
or the director as a result of testing positive for drugs or
alcohol under the mandatory drug and alcohol testing program may:
(1) Have the split sample retested of the test that revealed
the positive result, pursuant to this section and section
fifty-seven-a of this article; and
(2) Should the second test on the split sample reveal that the
first test was a false positive, the miner shall be put in the
position he or she was in before the false positive test. Should
the second test on the split sample reveal that the first test was
accurate, the operator can take action upon the miner pursuant to
this section.
NOTE:
The purpose of this bill is to establish a mandatory
drug and alcohol testing program for coal miners.
These sections are new; therefore, strike-throughs and
underscoring have been omitted.
Email
Webmaster | © 2024 West Virginia Legislature **
