H. B. 2201
(By Delegate Staggers)
[Introduced January 11, 2012
; 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:
(5) Phencyclidine (PCP);
(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, 2011, 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.
This article is new; therefore, it has been completely underscored.