West Virginia Governor Earl Ray Tomblin signed into law March 28, 2014 an amendment to the West Virginia Code requiring mandatory employer reporting to the West Virginia Office of Miners’ Health, Safety and Training (“OMHST”) whenever an applicant or employee, working in a safety-sensitive mining position, tests positive on a drug or alcohol test or refuses to test (including adulteration and substitution of test specimens).

The law, which took effect immediately, requires employers who employ or accept applications from “certified persons” who work in mines (persons qualified under the provisions of West Virginia Miners’ Health, Safety and Training law to perform such duties) to notify the director of OMHST within seven days, on a form supplied by the director of the OMHST, of any of the following:

(1)   a positive drug or alcohol test of a certified person, whether it be a pre-employment test, random test, reasonable suspicion test or post-accident test;

(2)   the refusal of a certified person to submit a sample;

(3)   a certified person possessing a substituted sample or an adulterated sample; or,

(4)   a certified person submitting a substituted sample or an adulterated sample.

Prior to the amendment mining employers were required only to provide notice to OMHST if they terminated an employee for one of the violations noted above.

An employer providing notice to OMHST for any of the above violations must also immediately and temporarily suspend all certificates held by the certified person at issue pending a hearing before an OMHST board of appeals.  Employers must include, when providing notice to OMHST, a copy of the laboratory test results showing the substances tested for and the results of the tests.  The law applies to both union and non-union employees.  Notice to OMHST concerning a certified person subject to a collective bargaining agreement may not result in the immediate temporary suspension, suspension or revocation of any certificate held by the certified person, until and unless the arbitration is concluded and the discharge is upheld.

The law already required that mining employers conduct random substance abuse testing and a pre-employment ten panel urine test that, at a minimum, tests for amphetamines, cannabinoids/THC, cocaine, opiates, phencyclidine (PCP), benzodiazepines, propoxyphene, methadone, barbiturates, and, synthetic narcotics.  All such pre-employment urine tests must collect split samples, collected by providers who are certified as complying with standards and procedures set forth in 49 C.F.R. Part 40 (U. S. Department of Transportation Regulations).  The law also requires that employers review their substance abuse screening program with all persons required to be tested at the time of employment, upon a change in the program and annually thereafter.

West Virginia mining employers should review and revise their drug testing policies to ensure compliance with the amended law.

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Photo of Kathryn J. Russo Kathryn J. Russo

Kathryn J. Russo is a principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws, as well as…

Kathryn J. Russo is a principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws, as well as substance abuse management and marijuana laws’ impact on employers.

Kathryn helps clients navigate workplace problems involving drugs and alcohol. She regularly works with corporate counsel and human resources executives to develop substance abuse policies to comply with federal drug and alcohol testing regulations (including all agencies of the U.S. Department of Transportation), as well as state and local drug and alcohol testing laws and marijuana laws in all 50 states. In addition, she defends employers in litigation where drug and alcohol test results are at issue, and frequently conducts “reasonable suspicion” training for employers in connection with their substance abuse policies. Kathryn also advises employers on leave and disability management issues arising when employees seek leave or other accommodations related to substance abuse rehabilitation.