H. B. 2103
(By Delegate Staggers)
[Introduced February 11, 2009; referred to the
Committee on Energy, Industry and Labor, Economic
Development and Small Business then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §22A-7A-1, §22A-7A-2,
§22A-7A-3, §22A-7A-4, §22A-7A-5, §22A-7A-6, §22A-7A-7,
§22A-7A-8 and §22A-7A-9, all relating to drug and alcohol free
mines; providing credit for Workers Compensation premiums to
mines that have a drug and alcohol free program; requiring
proof of drug and alcohol free status for miner certification;
providing an approved testing system; denial of certification;
secondary testing; confidentiality of test results; providing
certain legislative findings; requiring proof of alcohol and
drug free status of certain miners; and including additional
drug and alcohol abuse training for certain miners; mine
inspectors drug and alcohol training; establishment of
statewide database of miners failing to provide proof of drug
and alcohol free status; making certain actions by persons listed on the database or failing a drug and alcohol test a
second time a misdemeanor offense and providing criminal
penalties; and making deliberate evasion of the database by a
coal operator a misdemeanor and providing a criminal penalty.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §22A-7A-1, §22A-7A-2,
§22A-7A-3, §22A-7A-4, §22A-7A-5, §22A-7A-6, §22A-7A-7, §22A-7A-8
and §22A-7A-9, all to read as follows:
ARTICLE 7A. DRUG FREE MINES.
§22A-7A-1. Credit against Workers' Compensation premiums.
(a) Any coal mine operator implementing a drug-free workplace
program, including an employee assistance program, certified by the
office of miners' health safety and training is eligible to obtain
a credit on the operator's premium for Workers' Compensation
Insurance.
(b) Each insurer authorized to write Workers' Compensation
insurance policies shall provide the credit on the Workers'
Compensation premium to any coal mine operator for which the
insurer has written a Workers' Compensation policy. The credit on
the Workers' Compensation premium shall not:
(1) Be available to those coal mine operators that do not
maintain their drug free workplace program for the entire Workers'
Compensation policy period; or
(2) Apply to minimum premium policies.
(c) The Insurance Commissioner shall approve Workers'
Compensation rating plans that give a credit on the premium for a
certified drug free workplace so long as the credit is actuarially
sound. The credit shall be at least five percent unless the
Insurance Commissioner determines that five percent is actuarially
unsound.
(3) The credit on the Workers' Compensation premium may be
applied by the insurer at the final audit.
§22A-7A-2. Drug and alcohol free status of applicants for
certification required.
(a) All applicants for certification as new miners and all
initial applicants for all other certifications provided in this
chapter shall provide proof of drug and alcohol free status prior
to certification in accordance with the provisions of this section.
(b) Proof of drug and alcohol free status shall be provided in
one of two methods:
(1) By participation in a drug and alcohol testing program
offered by the office of miners' health, safety and training and
paid by the applicant, in accordance with sections two and three of
this article; or
(2) By the submission of drug and alcohol test results from
other sources, as provided in subsection (2), section three of this
article.
(c) If a newly certified miner gains employment in the coal
industry, the initial employer shall reimburse the certified miner
for the cost of one drug and alcohol test required by sections two,
three, four and five of this article.
(d) If the applicant is currently certified in any category
other than that for which he or she is applying by the office of
miners' health, safety and training and the applicant is currently
employed in the coal industry, the applicant's employer shall
reimburse the applicant for the cost of one drug and alcohol test
required by sections two, three, four and five of this article.
(e) The fee charged to an applicant for the drug and alcohol
tests offered by the office of miners' health, safety and training
shall not exceed the actual cost of collection, analysis, and
medical review.
(f) The office of miners' health, safety and training shall
provide, at each site of examinations for the certifications, a
breath alcohol testing device and a person certified in the
operation of the breath alcohol testing device. The breath alcohol
test shall be administered prior to examination to determine the
applicant's alcohol free status. The office of miners' health,
safety and training may satisfy the requirement to furnish an
alcohol testing device and certified personnel by:
(1) The use of equipment and appropriately certified personnel
of the office of miners' health, safety and training;
(2) A memorandum of agreement with state or local police
agencies for the provision of equipment and appropriately trained
personnel at the examination site; or
(3) Inclusion of breath alcohol testing as part of the
contract to provide drug testing and collection services set out in
subsection (1) of section three of this article.
(g) A breath alcohol concentration of four-tenths of a percent
(.04) shall be the maximum acceptable level of concentration for
participation in the examination and subsequent certification.
(h) Except for an alternative testing protocol provided for
post-accident victims, the minimum testing protocol acceptable for
the establishment of drug free status for certification shall be an
eleven panel urine test that shall include testing for the
following substances:
(1) Amphetamines;
(2) Cannabanoids/THC;
(3) Cocaine;
(4) Opiates;
(5) Phencyclidine (PCP);
(6) Benzodiazepines;
(7) Propoxyphene;
(8) Methaqualone;
(9) Methadone;
(10) Barbiturates; and
(11) Synthetic narcotics.
§22A-7A-3. Drug and alcohol free testing standards.
(a) The office of miners' health, safety and training may
contract with qualified companies to provide the collection of
samples and administer the required drug and alcohol tests. The
contract may provide that the collection of samples or testing be
subcontracted, except that the contract shall require:
(1) The contractor, and any subcontractors, to follow all
standards, procedures, and protocols set forth by the United States
Department of Health and Human Services' Substance Abuse and Mental
Health Services Administration (SAMHSA) for the collection and
testing required by section two and this section of this article;
(2) The contractor's or subcontractor's drug testing protocol
shall be an eleven panel test; and
(3) The contractor or the subcontractor shall provide a
medical review officer who shall:
(A) Possess the ability and medical training necessary to
verify positive confirmed test results and evaluate those results
in relation to an applicant's medical history or other biomedical
information; and
(B) Follow all procedures outlined in the SAMHSA Medical
Review Officer Manual.
(b) The executive director of the office of miners' health,
safety and training may accept proof of drug and alcohol free status from other sources whose tests conform to the requirements
set forth in this article under the following conditions:
(1) An applicant shall submit a request for acceptance of his
or her drug and alcohol free status to the director accompanied by
pass/fail results of a drug and alcohol test taken within thirty
days prior to the request; and
(2) The test results shall have been performed by laboratories
certified in accordance with the National Laboratory Certification
Program (NLCP) by the United States Department of Health and Human
Services Administration's SAMHSA and in accordance with subsection
(1) of this section.
(3) The office of miners' health, safety and training shall
maintain and publish annually a list of certified specimen
collection services and testing laboratories from which it will
accept data.
§22A-7A-4. Effect of test results on certification.
(a) The results of any testing performed by the office of
miners' health, safety and training shall be given to the applicant
at the time of his or her notification of the granting or denial of
certification.
(b) Certification of an applicant shall be denied if any one
or more of the following occur:
(1) The applicant's positive drug test results for any of the
eleven substances listed in section two of this article are deemed
to fail by a medical review officer;
(2) The applicant's blood alcohol level is above four-tenths
of one percent concentration at the time of testing;
(3) The applicant's test results demonstrate the submission of
an adulterated specimen; or
(4) The applicant refuses to submit to a drug or alcohol test
as required by section two of this article.
(c) Any applicant who is denied certification due to the
results of the drug and alcohol testing required by section two of
this article may be retested again, at his or her expense, within
ten days of notification of the results of the initial test.
(d) If an applicant fails a drug and alcohol retest as
provided in subsection (c) of this section and the applicant is
denied certification, the applicant may reapply for certification
only after an evaluation by a medical professional trained in
substance abuse treatment and the successful completion of
prescribed treatment and an acceptable result from a drug and
alcohol test as required by section two of this article. Proof of
the evaluation and the successful completion of the prescribed
treatment shall be shown at the time of application.
(e) Any applicant who is denied certification due to the
results of the drug and alcohol testing required by section two of this article, may file an appeal of the denial with the board of
appeals within thirty days of the notification of the results of
the test.
§22A-7A-5. Confidentiality of drug and alcohol test 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 the
provisions of article one, chapter twenty-nine-b, 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;
(2) Where release of the information is compelled by a hearing
officer or court of competent jurisdiction pursuant to an appeal;
(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 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 director of the office of miners' health, safety and training
or a court of competent jurisdiction in disciplinary proceeding.
(b) Information on 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-7A-6. Legislative findings.
(a) The highest priority and concern of the Legislature is
with the health and safety of the coal industry's most valuable
resource, the miner.
(b) The continued prosperity of the coal industry is of
primary importance to the state.
(c) A high priority must be given to increasing the
productivity and competitiveness of the mines in this state.
(d) An inordinate number of miners are killed or injured
during the first few months of their experience in a mine and upon
acquiring new work assignments in a mine.
(e) These injuries result in the loss of life and serious
injury to miners and are an impediment to the future growth of the
state's coal industry.
(f) Mining is a technical occupation with various specialties
requiring individualized training and education.
(g) Injuries can be reduced through proper miner training,
education and certification.
(h) Mine safety can be improved by the imposition and
enforcement of sanctions against licensed premises and certified
and noncertified personnel whose willful and repeated violations of
mine safety laws place miners in imminent danger of serious injury
or death.
(i) Abuse of illicit substances and alcohol in the mining
industry represents a serious threat to the health and safety of
all miners. Substance and alcohol abuse adversely affect the
health and safety of miners. Mine safety can be significantly
improved by establishing as a condition of certification that
miners remain drug and alcohol free.
§22A-7A-7. Proof of drug and alcohol free status for certification
and required training.
(a) No person shall be assigned mining duties by a coal mine
operator as a laborer or supervisor unless the person holds a valid
certificate of competency and qualification or a valid permit as
trainee issued in accordance with this section.
(b) The office of miners' health, safety and training shall
require that all applicants for certified miner and initial
applicants for other mining certifications pursuant to this chapter shall submit proof that he or she is drug and alcohol free. The
proof shall be submitted in accordance with sections two and three
of this article.
(c) A permit as trainee miner shall be issued by the director
to any person who has submitted proof that he or she is drug and
alcohol free in accordance with sections two and three of this
article and has completed a program of education as provided in
this chapter to include a requirement for a permit as a trainee
miner shall be one hour of classroom training dedicated to alcohol
and substance abuse education.
§22A-7A-8. Mine Inspector drug and alcohol training.
(a) Not later than July 1, 2009, the director of the office of
miners' health safety and training shall implement a training
program for mine inspectors to include the following:
(1) Common symptoms of alcohol and drug abuse;
(2) The identification of drugs and drug paraphernalia;
(3) Proper procedures for handling and processing evidence of
suspected use of illegal drugs or alcohol; and
(4) Training in drug and alcohol abuse education for mine
operators and miners.
(b) A mine inspector shall annually provide proof of drug and
alcohol free status as provided in this article for certification
of miners. A mine inspector failing or refusing to provide proof
of drug and alcohol free status shall be terminated.
§22A-7A-9. Database of miners failing drug or alcohol free
status.
(a) The director of miners' health, safety and training shall
develop and maintain a database of the names of miners who have
failed to provide proof of drug and alcohol free status or who have
been removed from the mines as a result of having been found to use
drugs and alcohol while employed in the mines.
(b) Any person listed in the database shall enter and
successfully finish a drug and alcohol abuse rehabilitation
program, successfully pass a drug and alcohol test and shall be
required to participate in additional training concerning mine
safety before being permitted to work in a mine.
(c) It is a misdemeanor offense for any person listed on the
database to apply for employment as a miner and it is a misdemeanor
offense for a miner to test positive for drug or alcohol abuse for
a second time. Any person violating the provisions of this
subsection is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than $500 or confined in jail not more than
one year, or both fined and confined.
(d) It is a misdemeanor offense for a mine operator to
disregard the names of persons listed on the database and hire any
person on the database in a mine. Any coal operator or responsible
employee of the coal operator who violated the provisions of this
subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500 or confined in jail not more than
one year, or both fined and confined.
NOTE: The purpose of this bill is to provide for a
comprehensive drug and alcohol free program for miners. Mine
operators are eligible for a credit on their Workers' Compensation
premiums if they have established a drug and alcohol free mine
workplace as provided in the bill. The bill requires proof of drug
and alcohol free status in order for miners to be certified. Mine
inspectors are required to receive training in drug and alcohol
abuse and a statewide database of miners failing to provide proof
of alcohol and drug free status is established. Criminal penalties
are also provided in the bill for violations.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.