From: Chris Hamilton
RE: WVCA’s Comments to MSHA’s Proposed Rule on Drug Testing
Attached is a copy of the oral testimony I delivered at the public hearing held on Wednesday on MSHA’s proposed rule on “Drug Testing”. The post hearing, written comment period extends through October 29th. Please review this draft and let me know by the 28th whether other points or issues should be incorporated in our final comments.
Thanks to everyone who provided comments to help formulate our hearing remarks and special thanks to Anna Dailey of Dinsmore and Shohl, for providing the outline and text we used for our testimony.
October 16, 2008--
To: WVCA Mine Law & Safety Committee
From: Chris Hamilton
RE: WVCA’s Comments to MSHA’s Proposed Rule on Drug Testing
Attached is a copy of the oral testimony I delivered at the public hearing held on Wednesday on MSHA’s proposed rule on “Drug Testing”. The post hearing, written comment period extends through October 29th. Please review this draft and let me know by the 28th whether other points or issues should be incorporated in our final comments.
Thanks to everyone who provided comments to help formulate our hearing remarks and special thanks to Anna Dailey of Dinsmore and Shohl, for providing the outline and text we used for our testimony.
________________________________________________________________________________________________________________________
Comments and Submittal of:
Chris Hamilton, Senior Vice President, West Virginia Coal Association, in response to MSHA’s Proposed Drug Testing Rule.
Public Hearing -- October 14, 2008, Beckley, West Virginia
Good morning. My name is Chris Hamilton, Senior Vice President, West Virginia Coal Association. The West Virginia Coal Association is a trade association comprised of coal producing companies that collectively account for nearly eighty percent (80%) of the states coal production.
Our membership also includes equipment manufacturers, a variety of mine vendors and supply companies, land companies, mine reclamation and explosive companies, mine maintenance and general service companies.
We appreciate the opportunity to comment on MSHA’s proposed drug testing rule.
We are supportive of the comments made today and submittal of the national Mining Association.
Initially, allow me to compliment the agency for its clear recognition throughout the preamble of the proposed rule that the use of alcohol or prohibited substances is a serious safety concern and should not be permitted in or around mining operations and those individuals under the influence of the same, should likewise, not be permitted in or around mining operations.
Although we do not believe drug use is any more prevalent around coal mines than any other industrial site. In fact, our workforce is exceptional with an abundance of skills, overall qualification and professionalism. However, we do know that alcoholism and drug use is a problem in society and it has been linked to mine related accidents.
Despite a couple of high profile mining accidents that have occurred over the past several years, the mining industry has made great progress with its overall mine safety performance. But mining has it’s inherit hazards. Hazards which must be averted or recognized then managed and controlled.
The fact is – the mine environment requires supreme vigilance (continuously). Individual attention to detail and alertness are also essential.
The use of drugs or alcohol was first observed by MSHA over twenty five (25) years ago when it joined with mining states, and in particular the state of West Virginia, to identify appropriate treatment centers and available programs for individuals suffering from drug or alcohol use.
We do not understand why it has taken a quarter century to advance this rulemaking from the time it was first realized to be a problem to now, but we’re here today with a proposed rule, which we believe evidences a major step forward towards making greater improvements in workplace safety.
However, that desired outcome and our shared goal of zero accidents will only be realized if substantial changes are made to the proposed rule which in its current form undermines or compromises those drug testing programs currently being administered or carried out by a number of progressive states and companies here in West Virginia and around the country.
As you’re aware, many companies in West Virginia and around the country have implemented mandatory drug testing programs. Most of these programs provide for a zero tolerance for drug use and subject individuals to discharge upon testing positive. These companies place the unlawful use of prohibited substances and alcohol in a mine environment right next to smoking in underground mines; working on energized electrical circuits, or going under unsupported roof in a mine.
A large number of programs currently in place also provide the opportunity for individuals with drug problems to voluntarily enroll or solicit help through an approved Employee Assistance Program or other recognizable medical professionals before they test.
On the other hand, MSHA’s propose rule weakens these programs by allowing individuals who test positive to have additional chances and possibly subjecting themselves or others to potential safety hazards.
MSHA’s policy sends message that it is tolerating illegal drug consumption for miners. Where a policy is zero tolerance, lives are saved, miners know not to use alcohol or prohibited substances, because use will result in discharge at a zero tolerance mine. Additionally, a zero tolerance policy serves to change behavior and motivates one in need of help to get it. It also has the greatest potential to effect a cultural change needed to combat this problem.
MSHA should not be dictating to employers the appropriate discipline for violations of drug testing policies. To do so interferes with the labor relations policies of employers and with some collective bargaining agreements. Many employers currently discharge employees for: confirmed positive drug tests; adulterated drug tests; and refusals to drug test. Most of these same employers do allow employees to step forward before being told to submit to a reasonable suspicion or random test and are given an opportunity to recover from substance abuse without discharge in such cases. Many also use Last Chance Agreements. MSHA, like DOT, should leave the decisions on employment status or discipline to employers.
We will hear during this hearing that by prohibiting discharge of first positives, MSHA’s proposed rule seriously hampers or effectively guts KY and VA miner safety laws regarding drug testing which are zero tolerance policies. KY passed drug testing legislation in July 2006. Since then 443 certified miners have had mining licenses suspended as of January 1, 2008. Both states report successes with their overall mine safety efforts as a result of their drug testing programs. The state of KY had its safest year ever in 2007 with no underground fatalities. Miners can get certification back after proving they are drug free. No obligation on operator to keep de-certified miner's job secure. MSHA's proposed regs undercut these state laws making KY and VA mines less safe than they are today. The preamble to the rule correctly notes that WV is considering a drug testing program which is being modeled after KY’s program (zero tolerance).
MSHA's "job security" protection for first positive results appears to also extend to persons who adulterate test specimen (a crime in some states) or who refuse to take drug test. Both are acts of defiance which should be considered insubordination and dischargeable offenses, not an opportunity for job security.
The regulation has no explanation of what "job security" means. There are no time limits for how long a job must be held while someone is recovering in rehabilitation. There is no explanation of any replacement rights of employer to secure someone who can do job while employee gone 30 days or more. There is no mention of who pays for family health benefits which may run $1,000/month for premiums while employee is absent from work while in detox or treatment. There is no mention of coordination with ADA or FMLA rights and obligations.
The ADA recognizes the difference between alcoholism, an addiction caused by a legal substance and illegal drug use.
However, MSHA is treating illegal drug use the same as alcoholism. There should be zero tolerance for illegal drug use.
Many mines do not use urine testing and use more reliable testing, such as hair. MSHA's drug regulations should set minimum allowable standards and let states, operators and the marketplace determine if they want to follow a more stringent standard for testing. (See support for this in GAO reports on reliability of urine tests.)
The regulations do not discuss what an operator can or should do if someone who is taking a prescribed drug is still unsafe to himself or others. Such situations occur and the operator must determine if the person can safely perform the essential functions of their job while taking such medications.
We also question the length of the required training within the rule.
This regulation with its "job security" provision will likely increase unwarranted Section 105(c) actions. May also result in supervisor facing 110(c)allegations for failing to recognize employee on drugs, while employee gets job security, an untenable situation.
There is no similar OSHA regulation. This is discriminatory to miners, who need to be better protected from illegal drug use.
The proposed rule Ignores increased costs to employers for detox and rehabilitation expenses for persons who would have been discharged under many policies.
In conclusion, we encourage MSHA to finalize this rule making consistent with the comments contained herein. We believe the zero tolerance policy should be unconditionally embraced by MSHA to ensure a higher level of mine safety and miner protection.
We appreciate the opportunity to comment on this proposed drug testing rule and will follow up with written comments by the end of the comment period.
Thank You.