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WEST VIRGINIA CODE
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WVC 22A- CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING.
ARTICLE 01A - OFFICE OF MINERS’ HEALTH, SAFETY AND TRAINING; ADMINISTRATION; SUBSTANCE ABUSE ARTICLE 1A. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING; ADMINISTRATION; SUBSTANCE ABUSE. WVC 22 A- 1 A- 1

§22A-1A-1. Substance abuse screening; minimum requirements; standards and procedures for screening.

     (a) Every employer of certified persons, as defined in section two, article one of this chapter, shall implement a substance abuse screening policy and program that shall, at a minimum, include:

     (1) A preemployment, ten-panel urine test for the following and any other substances as set out in rules adopted by the Office of Miners' Health, Safety and Training:

     (A) Amphetamines;

     (B) Cannabinoids/THC;

     (C) Cocaine;

     (D) Opiates;

     (E) Phencyclidine (PCP);

     (F) Benzodiazepines;

     (G) Propoxyphene;

     (H) Methadone;

     (I) Barbiturates; and

     (J) Synthetic narcotics.

     Split samples shall be collected by providers who are certified as complying with standards and procedures set out in the United States Department of Transportation's rule, 49 C. F. R. Part 40, which may be amended from time to time by legislative rule of the Office of Miners' Health, Safety and Training. Collected samples shall be tested by laboratories certified by the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA) for collection and testing. Notwithstanding the provisions of this subdivision, the mine operator may implement a more stringent substance abuse screening policy and program;

     (2) A random substance abuse testing program covering the substances referenced in subdivision (1) of this subsection. "Random testing" means that each person subject to testing has a statistically equal chance of being selected for testing at random and at unscheduled times. The selection of persons for random testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with the persons' Social Security numbers, payroll identification numbers or other comparable identifying numbers; and

     (3) Review of the substance abuse screening program with all persons required to be tested at the time of employment, upon a change in the program and annually thereafter.

     (b) For purposes of this subsection, preemployment testing shall be required upon hiring by a new employer, rehiring by a former employer following a termination of the employer/employee relationship or transferring to a West Virginia mine from an employer's out-of-state mine to the extent that any substance abuse test required by the employer in the other jurisdiction does not comply with the minimum standards for substance abuse testing required by this article. Furthermore, the provisions of this section apply to all employers that employ certified persons who work in mines, regardless of whether that employer is an operator, contractor, subcontractor or otherwise.

     (c) (1) Every employer shall notify the director, on a form prescribed by the director, within seven (7) days of any of the following:

     (A) A positive drug or alcohol test of a certified person, whether it be a preemployment test, random test, reasonable suspicion test or post-accident test;

     (B) The refusal of a certified person to submit a sample;

     (C) A certified person possessing a substituted sample or an adulterated sample; or

     (D) A certified person submitting a substituted sample or an adulterated sample.

     (2) With respect to any certified person subject to a collective bargaining agreement, the employer shall notify the director, on a form prescribed by the director, within seven (7) days of any of the following: Provided, That notification pursuant to this subdivision shall not result in the immediate temporary suspension, suspension or revocation of any certificate held by a certified person who is subject to a collective bargaining agreement unless and until the arbitration is concluded and the discharge is upheld:

     (A) A positive drug or alcohol test of a certified person, whether it be a preemployment test, random test, reasonable suspicion test or post-accident test;

     (B) The refusal of a certified person to submit a sample;

     (C) A certified person possessing a substituted sample or an adulterated sample; or

     (D) A certified person submitting a substituted sample or an adulterated sample.

     (3) When the employer submits the completed notification form prescribed by the director, the employer shall also submit a copy of the laboratory test results showing the substances tested for and the results of the test.

     (4) Notice shall result in the immediate temporary suspension of all certificates held by the certified person who failed the screening, pending a hearing before the board of appeals pursuant to section two of this article: Provided, That notification pursuant to this subsection shall not result in the immediate temporary suspension of any certificate held by a certified person who is subject to a collective bargaining agreement unless and until the arbitration is concluded and the discharge is upheld, and no certificate held by a certified person who is subject to a collective bargaining agreement shall be suspended or revoked unless the discharge is upheld in arbitration: Provided, however, That if the certified person terminates his or her employment or voluntarily removes himself or herself from the grievance or arbitration procedure, the certified person may be immediately, temporarily decertified pursuant to this article.

     (d) Suspension or revocation of a certified person's certificate as a miner or other miner specialty in another jurisdiction by the applicable regulatory or licensing authority for substance abuse-related matters shall result in the director immediately and temporarily suspending the certified person's West Virginia certificate until such time as the certified person's certification is reinstated in the other jurisdiction.

     (e) The provisions of this article shall not be construed to preclude an employer from developing or maintaining a drug and alcohol abuse policy, testing program or substance abuse program that exceeds the minimum requirements set forth in this section. The provisions of this article shall also not be construed to require an employer to alter, amend, revise or otherwise change, in any respect, a previously established substance abuse screening policy and program that meets or exceeds the minimum requirements set forth in this section. The provisions of this article shall require an employer to subject its employees who as part of their employment are regularly present at a mine and who are employed in a safety-sensitive position to preemployment and random substance abuse tests: Provided, That each employer shall retain the discretion to establish the parameters of its substance abuse screening policy and program so long as it meets the minimum requirements of this article. For purposes of this section, a "safety-sensitive position" means an employment position where the employee's job responsibilities include duties and activities that involve the personal safety of the employee or others working at a mine.

WVC 22 A- 1 A- 2

§22A-1A-2. Board of Appeals hearing procedures.

     (a) Any hearing conducted after the temporary suspension of a certified person's certificate pursuant to this article, shall be conducted within sixty days of the temporary suspension. The Board of Appeals shall make every effort to hold the hearing within forty days of the temporary suspension.

     (b) All hearings of the Board of Appeals pursuant to this section shall be conducted in accordance with the provisions of subsection (c), section thirty-one, article one of this chapter. The Board of Appeals may suspend the certificate or certificates of a certified person for violation of this article or for any other violation of this chapter pertaining to substance abuse. The Board of Appeals may impose further disciplinary actions for repeat violations. The director shall have the authority to propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code to establish the disciplinary actions referenced in this section following the receipt of recommendations from the Board of Coal Mine Health and Safety following completion of the study required pursuant to section fourteen, article six of this chapter. The legislative rules authorized by this subsection shall not, however, include any provisions requiring an employer to take or refrain from taking any specific personnel action or mandating any employer to establish or maintain an employer-funded substance abuse rehabilitation program.

     (c) No person whose certification is suspended or revoked under this section may perform any duties under any other certification issued under this chapter, during the period of the suspension imposed by the Board of Appeals.

     (d) Any party adversely affected by a final order or decision issued by the Board of Appeals hereunder is entitled to judicial review thereof pursuant to section four, article five, chapter twenty-nine-a of this code.

WVC 22 A- 1 A- 3

§22A-1A-3. Disclosure of records exempt; exceptions.

     Records of substance abuse and alcohol screening tests, written or otherwise, received by the Office of Miners' Health, Safety and Training, its employees, agents and representatives are confidential communications and are exempt from disclosure under article one, chapter twenty-nine-b of the code, except as follows:

     (a) 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:

     (1) The name of the person who is authorized to obtain the information;

     (2) The purpose of the disclosure;

     (3) The precise information to be disclosed;

     (4) The duration of the consent; and

     (5) The signature of the person authorizing the release of the information;

     (b) Where the release of the information is compelled by the Board of Appeals or a court of competent jurisdiction;

     (c) Where the release of the information is relevant to a legal claim asserted by the person tested;

     (d) Where the information is used by the entity conducting the substance abuse or alcohol screening test in defense of a civil or administrative action related to the testing or results, or to consult with its legal counsel; or

     (e) Where release of the information is deemed appropriate by the Board of Appeals or a court of competent jurisdiction in a disciplinary proceeding.

WVC 22 A- 1 A- 4

§22A-1A-4. Effective date.

     The provisions of this article are effective beginning January 1, 2013.

Note: WV Code updated with legislation passed through the 2014 1st Special Session
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