Senate Bill No. 534
(By Senators Hall and Wells)
[Introduced February 17, 2011; referred to the Committee on Labor; and then to the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §22A-8-10, relating to mandatory drug testing of coal miners; establishing the date when the required testing programs must be in place; setting forth the consequences if a miner has had his or her mining certificate revoked by another state; identifying the minimum drugs to be tested for; testing to be done at the state’s expense; requirements for recordkeeping; and authority for rulemaking.
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 section, designated §22A-8-10, to read as follows:
ARTICLE 8. CERTIFICATION OF UNDERGROUND AND SURFACE COAL MINERS.
§22A-8-10. Mandatory drug testing program for miners; situations resulting in testing; record keeping; promulgation of rules.
(a) As part of the state regulatory program for mine safety, the director shall establish a mandatory drug testing program for miners, apprenticeship miners and applicants for a position as a miner. Coal miners are considered to be in the performance of safety-sensitive work in which impairment from drugs would threaten the health or safety of the impaired miner, other miners or other employees at the mine, and further finding that the Legislature considers drug testing of miners not an invasion of privacy.
(b) The mandatory drug program shall, at a minimum, screen for concentrations of the following controlled substances:
(1) Marijuana metabolites;
(2) Cocaine metabolites;
(4) Amphetamines; and
(5) Opiate metabolites.
(c) The mandatory drug testing program shall require all miners and applicants for a position as a miner to submit to split sampled drug 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 from an extended absence;
(4) If a reasonable suspicion exists that the miner is impaired from drugs; and
(5) During random testing done pursuant to the rules promulgated according to this section.
(d) The director may not issue a certificate of competency and qualification to any miner or a permit of apprenticeship to any person who does not participate in the mandatory drug testing program or who tests positive in any drug test.
(e) All drug testing shall be at the expense of the state. An operator shall notify the director of the results of all positive drug tests within five working days. The operator shall also notify the director of the reason for the drug test and the resulting employment action taken.
(f) An operator shall provide new and current miners with information and training about the mandatory drug 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 result in immediate termination of employment.
(g) An operator shall immediately remove and may terminate a miner or apprenticeship miner who tests positive for any of the controlled substances listed in subsection (b) of this section. An operator may not hire any applicant to be a miner who tests positive for any of the controlled substances listed in subsection (b) of this section.
(h) An operator shall not allow an employee who tests positive for drugs to resume responsibilities as a miner or apprenticeship miner.
(i) The operator shall maintain records of drug 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.
(j) Drug test records are not subject to inspection by the public pursuant to the West Virginia Freedom of Information Act. Operators shall maintain records for a minimum of five years of verified positive drug tests, miner refusals to take mandatory tests, and fitness for duty evaluations.
(k) No operator or miner shall alter or disregard the results of a drug test or alter a specimen obtained for the purposes of drug and testing.
(l) An operator shall require miners to sign forms consenting to the mandatory drug testing requirements as a condition of employment and shall terminate any miner or apprenticeship miner who refuses to take a mandated drug test.
(m) Any miner that is aggrieved by an action of the operator or the director as a result of testing positive for drugs under the mandatory drug testing program may:
(1) Have the split sample retested of the test that revealed the positive result; 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 shall terminate his or her employment as a miner or apprenticeship miner.
(n) The Board of Coal Mine Health and Safety shall promulgate rules to establish impermissible concentrations for drugs 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 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 pursuant to this section.
(o) Within one hundred twenty days following the effective date of this section, all surface and underground mines shall have a mandatory drug testing program that is administered in a nondiscriminating manner to all employees who work in safety sensitive areas.
(p) Any miner who tests positive for personal drug use that results in a revocation of his or her mining certificate from another mining state, upon the date of having his or her mining certificate revoked, forfeits all applicable mining certificates issued by the State of West Virginia and is not eligible for reinstatement until such time the certificate revoked from the other state has been reissued.
NOTE: The purpose of this bill is to require mandatory drug testing of coal miners. The bill identifies the minimum drugs to be tested for. The bill requires testing to be done at the state’s expense. The bill establishes the date when the required testing programs must be in place. The bill sets forth the consequences if a miner has had his of her mining certificate revoked by another state. The bill provides that no person who tests positive may be employed as a coal miner. The bill also establishes requirements for record keeping. The bill further provides authority for rulemaking.
This section is new; therefore, strike-throughs and underscoring have been omitted.