Recently, the West Virginia Legislature passed HB 4531, a mine health and safety bill aimed in part at curbing substance abuse by miners and promoting safety in the workplace.  The substance abuse prevention section of the law, codified at W. Va. Code §22A-1A-1 et seq., requires employers to implement a substance abuse screening policy that requires both pre-employment and random drug testing beginning January 1, 2013.  The statute applies to all employers who “employ certified persons who work in mines, regardless of whether the employer is an operator, contractor, a subcontractor or otherwise.”  The Office of Miner’s Health, Safety and Training (“OMHST”) is charged with overseeing the new statute’s implementation and is given authority to make additional rules and regulations to enforce its provisions.

There are two main parts to the testing requirements prescribed by the statute.  First, pre-employment testing is required of all new hires, as well as all employees who are rehired by a former employer.  Furthermore, any employee who is transferred into West Virginia operations from a state which does not have a drug testing statute of similar ilk must be tested before starting work.

The second part requires a random drug testing program for employees in “safety-sensitive” positions.  “Random testing,” for purposes of the statute, means that each employee has an “equal chance of being selected for testing at random and at unscheduled times.”  The randomness must be ensured by a “scientifically valid” method, such as a “random number table” or “number generator” which is matched with employees’ social security numbers or other identifying numbers.  “Safety-sensitive” employees are defined as persons whose job duties include activities involving personal safety of employees or others working at the employer’s facility.  For practical purposes, this will likely include employees who serve as engineers, safety staff, and mine management.

All tests, both random and upon employment, must be a ten-paneled urine test for amphetamines, cannabinoid/THC, cocaine, opiates, PCP, benzodiazepines, propoxyphene, methadone, barbiturates, and synthetic narcotics.  Any other drugs, and other substances that are being used as pseudo-narcotics, such as bath salts or K-2, are not required to be tested.  Additionally, the statute does not specifically set levels which would trigger a “positive” test; OMHST may set such levels in the future.  Testing must be done by SAMSHA-certified laboratories and must be done in accordance with DOT standards, unless OMHST alters the procedures.  All testing standards are baselines, and employers are free to set more stringent standards for positive tests or to add substances or drugs to the testing panel.

In addition to the testing prongs, there are educational and reporting requirements in the statute.  All drug testing policies must be reviewed with new hires, with all employees annually, and at any time there are changes to the drug testing program.  Employers must send a quarterly report to OMHST detailing the number of tests and the number of positive test results under the employer’s program.  Employers must also notify the OMHST’s director of any employee discharged for violation of the employer’s drug screening policy, and such notices must include a record of the positive test result.  Once the OMHST receives notice of the discharge, the employee’s certificate is temporarily suspended pending a hearing before the OMHST Board of Appeals to be completed 40 to 60 days after the discharge. Lastly, any arbitration pursuant to a collective bargaining agreement regarding the employer’s testing policy must be reported within seven days of completion.

This law imposes many new requirements on employers in the mining industry and bears watching in the coming months due to its seemingly incomplete nature.  While the statute goes a long way in attempting to protect miners from persons who are under the influence of illicit substances, the statute notably lacks specifics in many areas.  For example, the statute provides no guidance for how to treat employees who test positive due to prescribed medications.  The statute is also silent on how these new regulations change or augment an employer’s obligations under the Americans with Disabilities Act.  Additionally, much of the enforcement procedure, as well as the standards, must be set by OMHST in the coming months.   As such, employers in the mining industry would be wise to keep an ear to the ground in order to ensure compliance as the new year rolls around.

Daniel Fassio focuses his practice in the area of labor and employment law. He has experience in the defense of clients involving employment and workplace injury matters including claims under Title VII, Title IX, FMLA,
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  1. Viggo Crowe

    It’s great to know that pre-hiring testing is required for all employees now. My brother is trying to start a new business soon that will require him to work with mining facilities. He needs to make sure he is doing everything he can to stay safe and make sure his business is running optimally.

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