SB140 S LABOR AM#1

Burrell 4483

    The Committee on Labor moved to amend the bill on page two, section one, line three, after the word “authorized” by striking out the period and adding the following: with the following amendment:

    On page two, after subsection 3.7, by inserting a new subsection, designated subsection 3.8, to read as follows:

    3.8. Duly licensed, mental health professional. The term “duly licensed, mental health professional” shall mean a psychiatrist, psychologist, professional counselor or substance abuse counselor in the United States who is licensed by, and in good standing with, the licensing authority of the jurisdiction in which the person practices.;

    By renumbering the remaining subsections;

    On page three, subsection 3.15, after the words “selection of persons for random testing” by inserting the words “shall be performed at the testing facility or testing site and”;

    On page four, subsection 3.17, by striking out the words “The term ‘serious accidents’” and inserting in lieu thereof the words “The term ‘serious accident’”;

    On page six, by striking out all of subsection 4.7 and inserting in lieu thereof a new subsection, designated subsection 4.7, to read as follows:

    4.7. Any applicant, who is adversely affected by a decision of the Director following a hearing on an application for safety-sensitive certification, may petition for judicial review of the Director’s decision in the Circuit Court of Kanawha County or in the circuit court of the county in which the applicant resides, pursuant to the provisions of W. Va. Code § 29A-5-4.;

    On page six, subsection 4.8, by striking out the word “shall” and inserting in lieu thereof the word “may”;

    On page seven, subdivision 5.3.5, by striking out the word “Pphencyclidine” and inserting in lieu thereof the word “Phencyclidine”;

    On page eight, subsection 5.5, by striking out “5.5” and inserting in lieu thereof “5.6”;

By renumbering the following subsections;

    On page nine, by striking out subsection 5.11 and inserting in lieu thereof a new subsection, designated subsection 5.11, to read as follows:

    5.11. Every employer or his or her agent shall notify the Director, on a form prescribed by the Director, within seven (7) days of discharging an employee for failing a random test, pre-employment test, recall test, reasonable suspicion test, post-accident test, refusing to submit a sample for testing, possessing a substituted sample, submitting a substituted sample, possessing an adulterated sample or submitting an adulterated sample, or other violation of the employer’s substance abuse and screening program. With respect to respect to those employees to a collective bargaining agreement that chose to arbitrate an issue involving a drug or alcohol test, the employer shall notify the Director, on a form prescribed by the Director within seven (7) days following receipt of an arbitrator’s decision ruling against the employee. When the employer submits the completed 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.;

    On page ten, subsection 5.16, after the word “facility” by striking out the word “annually”;

    On page eleven, subdivision 6.1.2, by striking out the words “Notify the Board of Appeals” and inserting in lieu thereof the words “Notify the Director”;

    On page eleven, subsection 6.2, by striking out the words “notify the Board of Appeals” and inserting in lieu thereof the words “notify the Director”;

    On page fourteen, subsection 8.1, by striking out the words “is found, by a preponderance of the evidence, to have: failed” and inserting in lieu thereof the words “has entered into a treatment plan agreement as specified in subsection 9.1 of this rule or who is found, by a preponderance of the evidence, to have failed”;

    On page fourteen, by striking out all of subsection 8.2 and inserting in lieu thereof three new subsections, designated subsections 8.2, 8.3 and 8.4, to read as follows:

    8.2. Any person requesting a hearing who intends to challenge the sample collection methods, the laboratory test results, the medical review officer’s verification of the laboratory test result or the chemical test of breath, shall notify the Director of his or her intent. The person shall submit the notification in writing, either in person or by mail to the Director, at least fourteen (14) days prior to the hearing date. The notification shall specify, in detail, the challenge the person intends to make.

    8.3. If the person requesting the hearing submits notification in writing to the Director that he/she intends to challenge the laboratory test results of the medical review officer’s verification of the laboratory test result, that person shall have the split sample testes, at his/her expense, at a SAMSHA-certified laboratory and those results verified by a medical review officer. The split sample results and the results of the split sample verification by a medical review officer shall be provided to the Director and the original medical review officer. No other form of evidence shall be admissible to challenge the laboratory test result of the medical review officer’s verification of the laboratory test result.

    8.4. If a person fails to comply with the notification requirements of this section, then the sample collection methods, the laboratory test results, the medical review officer’s verification of the laboratory test result, or the chemical test of breath shall be admissible as though the person and the Director had stipulated to their admissibility.;

    By renumbering the remaining subsections;

    On page fifteen, subdivision 9.1.1, by striking out the words “treatment at a facility licensed by the State of West Virginia in substance abuse” and inserting in lieu thereof the words “treatment, counseling and after-care under the supervision of a duly licensed, mental health professional”;

     On page fifteen, subdivision 9.1.2, by striking out the words “treatment at a facility licensed by the State of West Virginia in substance abuse” and inserting in lieu thereof the words “treatment, counseling and after-care under the supervision of a duly licensed, mental health professional”;

    On page fifteen, subdivision 9.1.3, by striking out the words “treatment at a facility licensed by the State of West Virginia in substance abuse” and inserting in lieu thereof the words “treatment, counseling and after-care under the supervision of a duly licensed, mental health professional”;

    And,

    On page sixteen, after subdivision 9.1.4, by adding thereto the following:

    9.1.5. An admission by the individual that he or she has failed or refused a drug and alcohol test for the first time and that a second failure or refusal shall result in the permanent revocation of all mining certifications issued to him or her.     9.2. The Director shall review all Treatment Agreements and shall not approve any Agreement that does not comply with this rule.

Adopted

Rejected