Attorneys discuss bill to drug test mine workers - WOWK 13 Charleston, Huntington WV News, Weather, Sports

Attorneys discuss bill to drug test mine workers

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Three attorneys say there are still some unanswered questions after a law passed that  mandates drug testing of mining personnel.  

Taking effect at the start of this year, the House bill made mandatory substance abuse and screening policies for "all coal operators and independent contractors who employs certified persons as defined in state code."

These screening policies required employees to undergo pre-employment substance abuse and random substance abuse tests.

It also mandated coal operators or independent contractors to notify the director of the Office of Miners Safety and Training when an employee is fired for failing a random screening.

The law also states upon receiving this notification, directors must suspend that employee's certificates before having a hearing in front of the board of appeals.

"Removing these individuals from the mines will reduce accidents and fatalities and prevent substantial harm to the public interest," the bill states.

Anna Dailey, a Charleston Dinsmore & Shohl attorney, said this law extends to all safety sensitive people on the property such as those working at the prep plant, supervisors, managers and everyone that goes out to a coal mine on a regular basis.

"If I'm a lawyer who is regularly going to a coal mine as part of my day-to-day work, then arguably, I would need to be drug tested," she explained.

Dailey explained similar practices have been conducted in Kentucky but until recently, West Virginia did not have anything like this.

"In Kentucky, where they had mandatory drug testing, if someone tested positive, they would lose their miners license," she explained. "A lot of them ended up coming here, where it was not a problem. Even if the company they were working for had drug testing and they were let go, they could quit or be discharged and go to the company down the road with no loss of their miners license."

She said the employee also could quit before the test came back positive.

"All mines are now having to do mandatory drug testing," she said. "But there are a lot of unanswered questions with the proposed regulations supposed to take place."

One of these questions, she said, is whether the company would report the positive test or the discharge.

"Would the rule only have you report the discharge? In my view, that isn't what it is truly trying to capture," Dailey said. "If there is not a discharge or if someone quits after taking a drug test, it should be that positive result that ought to be reported."

She said there also is a question of dealing with reporting results for someone who may have a prescription for the drug.

Curtis Capehart, another Dinsmore attorney, said this is a difficult situation.

"Obviously, you want to have the mechanism in place to try to catch people. … But there is a balancing act between testing those who may be repeat offenders, while safeguarding those who have a legitimate reason for a positive result."

Capehart explained there is a list of substances under the testing rules, which would allow for a prescription. 

"The reporting mechanism requires that every person comes back with a positive result be reported but then you catch people who had every reason in the world to have that in their blood stream because they have a prescription."

So how have companies reacted to this law? Dailey said in her view, reactions have been positive.

"Everyone I've dealt with is pleased that our state is having this testing," she said. "There are several things companies would like to see tweaked."

She said companies would like to be able to use oral fluids testing for current employees. She said is less invasive and doesn't require a person observing the other as he or she goes to the restroom.

"It also means there is less opportunity to dilute it and it is less costly to administer," she said.

And Dailey still sees a problem where people could quit before the test comes back.

"Right now, the way it is written in the rule, a person who knows he will test positive can quit. If a medical review officer called him up and asked if they have a prescription for the drug they are seeing in their system and they know they can get in trouble for it, they can quit and go down the road. There is no obligation that test result gets reported."

Capehart said there is a question of when the reporting should take place.

"There is the opportunity for someone to come back with a positive result and effectively jump ship before they are terminated, at which point they wouldn't be terminated. It's a difficult situation but there's still more that can be done beyond what the state is doing right now."

Dailey said an easy fix could be to characterize the illegal substance as "higher than therapeutic levels." A medical review officer would make this decision rather than the company.

"The other thing I thought was strange is it did not include alcohol," she said. "It didn't set a threshold. Clearly, someone who is drunk at work is just as dangerous as someone who is high at work. I don't know why they left it out of the rule."

Kelby Gray, another Dinsmore attorney, said the proposed rule does not adopt any time frame for pre-employment testing. As an example, Dailey said a person could pass a test two years before but that doesn't mean they aren't taking drugs now.

"We are encouraged by the proposed rule but there are several issues that need to be worked out," he said.