H. B. 3114
(By Delegates Craig and Frederick)
[Introduced
February 16, 2007
; referred to the
Committee on Industry and Labor, Economic Development and Small
Business then the Judiciary.]
A BILL to amend and reenact §22A-1-1 and §22A-1-31 of the Code of
West Virginia, 1931, as amended; to amend said code by adding
thereto a new article, designated §22A-11-1, §22A-11-2,
§22A-11-3, §22A-11-4, §22A-11-5, §22A-11-6, §22A-11-7,
§22A-11-8, §22A-11-9, §22A-11-10, §22A-11-11, §22A-11-12,
§22A-11-13 and §22A-11-14; and to amend and reenact §23-4-2 of
said code, all relating generally to the creation and
implementation of drug-free workplaces in coal mines;
requiring Office of Miners' Health Safety and Training to
ensure drug-free workplaces in the mining industry; adopting
procedures for the suspension or revocation of miners'
certification upon proof of confirmed positive drug tests;
requiring breach of duty hearings to be held within twenty
days; establishing process and conditions for reissuance of
miners' certification; authorizing Director of Office of Miners' Health Safety and Training to require all operators to
adopt drug-free workplaces programs at coal mines; assessment
of fee for costs; requiring employers to pay for cost of drug
tests for employees; providing for definitions; requiring all
companies providing safety-sensitive services to mine
operators to have drug-free workplace program for certain
employees; providing immunity from wrongful discharge lawsuits
for employers who implement program; implementing process for
drug testing and appellate procedure; permitting the Office of
Miners' Health Safety and Training to require drug and alcohol
test in serious mine accidents of certain persons; requiring
alcohol and drug tests on all mine fatalities; requiring
applicants for additional certifications to be certified drug
free; ensuring substance abuse training; requiring minimum
level of alcohol and substance abuse training and proof of
being drug and alcohol free for certification; requiring proof
of drug and alcohol free for applicants as apprenticeship
miner or miner certification; requiring Office of Miners'
Health Safety and Training to provide drug testing program for
apprentices; providing for cost reimbursement or acceptance of
results of certain other drug tests; providing for
confidentiality of drug test results and exemption from the
West Virginia Freedom of Information Act; allowing for release
by consent or compulsion by court order; establishing relevancy to legal claim asserted by applicant; prohibiting
use of results in criminal proceedings against applicant;
requiring substance abuse awareness training for emergency
medical services personnel in mines; providing for
severability; and modifying rights of certain employees to
receive indemnity benefits and common law right to sue where
accident proximately caused by employee's intoxication.
Be it enacted by the Legislature of West Virginia:
That §22A-1-1 and §22A-1-31 of the Code of West Virginia,
1931, as amended, be amended and reenacted; that said code be
amended by adding thereto a new article, designated §22A-11-1,
§22A-11-2, §22A-11-3, §22A-11-4, §22A-11-5, §22A-11-6, §22A-11-7,
§22A-11-8, §22A-11-9, §22A-11-10, §22A-11-11, §22A-11-12,
§22A-11-13 and §22A-11-14; and that §23-4-2 of said code be amended
and reenacted, all to read as follows:
CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING.
ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING;
ADMINISTRATION; ENFORCEMENT.
§22A-1-1. Continuation of the Office of Miners' Health, Safety and
Training; purpose.
(a) The Office of Miners' Health, Safety and Training is
continued and is a separate office within the Department of
Commerce, Labor and Environmental Resources. The office shall be
administered, in accordance with the provisions of this article, under the supervision and direction of the Director of the Office
of Miners' Health, Safety and Training.
(b) The Division of Health, Safety and Training shall have as
its purpose the supervision of the execution and enforcement of the
provisions of this chapter and, in carrying out the aforesaid
purposes, it shall give prime consideration to the protection of
the safety and health of persons employed within or at the mines of
this state.
To further preserve the safety and health of such
persons, the Division of Health, Safety and Training shall ensure
drug-free workplaces in the mining industry. In addition, the
division shall, consistent with the aforesaid prime consideration,
protect and preserve mining property and property used in
connection therewith.
§22A-1-31. Withdrawal of certification.
(a)
Charge of breach of duty. -- A mine inspector or the
director may charge a mine foreman, assistant mine foreman,
fireboss or any other certified person with neglect or failure to
perform any duty mandated pursuant to this article or article two
of this chapter. The charge shall state the name of the person
charged, the duty or duties he or she is alleged to have violated,
the approximate date and place so far as is known of the violation
of duty, the capacity of the person making the charge, and shall be
verified on the basis of information and belief or personal
knowledge. The charge is initiated by filing it with the director or with the board of appeals. A copy of any charge filed with the
board of appeals or any member thereof, shall be transmitted
promptly to the director. The director shall maintain a file of
each charge and of all related documents which shall be open to the
public.
(b)
Evaluation of charge by board of appeals. -- Within twenty
days after receipt of the charge the board shall evaluate the
charge and determine whether or not a violation of duty has been
stated. In making such a determination the board shall evaluate
all documents submitted to it by all persons to determine as nearly
as possible the substance of the charge and if the board of appeals
is unable to determine the substance of the charge it may request
the director to investigate the charge. Upon request, the director
shall cause the charge to be investigated and report the results of
the investigation to the board of appeals within ten days of the
director's receipt of the charge. If the board determines that
probable cause exists to support the allegation that the person
charged has violated his or her duty, the board by the end of the
twenty-day period shall set a date for hearing which date shall be
within eighty days of the filing of the charge.
Provided, That if
a certificate is being suspended or revoked because of a confirmed
positive drug test, pursuant to the provisions of article eleven of
this chapter, the charged party is entitled to a hearing within
twenty days of the filing of the breach of duty charge. Notice of the hearing or notice of denial of the hearing for failure to state
a charge and a copy of the charge shall be mailed by certified
mail, return receipt requested, to the charging party, the charged
party, the director, the representative of the miner or miners
affected and to any interested person of record. Thereafter the
board shall maintain the file of the charge which shall contain all
documents, testimony and other matters filed which shall be open
for public inspection.
(c)
Hearing. -- The Board of Appeals shall hold a hearing, may
appoint a hearing examiner to take evidence and report to the Board
of Appeals within the time allotted, may direct or authorize taking
of oral depositions under oath by any participant, or adopt any
other method for the gathering of sworn evidence which affords the
charging party, the charged party, the director and any interested
party of record due process of law and a fair opportunity to
present and make a record of evidence. Any member of the board
shall have the power to administer oaths. The board may subpoena
witnesses and require production of any books, papers, records or
other documents relevant or material to the inquiry. The board
shall consider all evidence offered in support of the charge and on
behalf of the persons so charged at the time and place designated
in the notice. Each witness shall be sworn and a transcript shall
be made of all evidence presented in any such hearing. No
continuance shall be granted except for good cause shown.
At the conclusion of the hearing the board shall proceed to
determine the case upon consideration of all the evidence offered
and shall render a decision containing its findings of fact and
conclusions of law. If the board finds by a preponderance of the
evidence that the certificate or certificates of the charged person
should be suspended or revoked, as hereinafter provided, it shall
enter an order to that effect. A confirmed positive drug or
alcohol test result in violation of this chapter is deemed good
cause to suspend or revoke a certification. No renewal of the
certificate shall be granted except as herein provided.
(d)
Failure to cooperate. -- Any person charged who without
just cause refuses or fails to appear before the board or cooperate
in the investigation or gathering of evidence shall forfeit his or
her certificate or certificates for a period to be determined by
the board, not to exceed five years, and such certificate or
certificates may not be renewed except upon a successful completion
of the examination prescribed by the law for mine foremen,
assistant mine foremen, firebosses or other certified persons.
(e)
Penalties. -- The board may suspend or revoke the
certificate or certificates of a charged party for a minimum of
thirty days or more including an indefinite period or may revoke
permanently the certificate or certificates of the charged party,
as it sees fit, subject to the prescribed penalties and monetary
fines imposed elsewhere in this chapter.
Provided, That if a certificate is suspended or revoked pursuant to article eleven of
this chapter, the charged party may not reapply for certification
until at least three months have passed since the suspension or
revocation: Provided, however, That the charged party must
provide documentation of having successfully completed a substance
abuse program and the charged party has tested drug and alcohol
free, which test must be performed within thirty days of
reapplication for certification.
(f)
Integrity of penalties imposed. -- No person whose
certification is suspended or revoked under this provision can
perform any duties under any other certification issued under this
chapter, during the period of the suspension imposed herein.
(g) Any party adversely affected by a final order or decision
issued by the board hereunder is entitled to judicial review
thereof pursuant to section four, article five, chapter
twenty-nine-a of this code.
ARTICLE 11. DRUG-FREE WORKPLACES IN WEST VIRGINIA MINES.
§22A-11-1. Legislative findings, purposes and intent.
The Legislature hereby finds and declares:
(a) That the Supreme Court of Appeals of West Virginia
recognized that the drug testing of employees will not violate
public policy grounded in the potential intrusion of a person's
right to privacy where it is conducted by an employer based upon a
reasonable good faith objective suspicion of an employee's drug usage, where an employee's job responsibility involves public
safety or the safety of others; and in preemployment/post-offer
testing of new hires;
(b) That according to the two thousand two National Survey on
Drug Use and Health (NSDUH) conducted by the Federal Department of
Health and Human Services - Substance Abuse and Mental Health
Services Administration (HHS-SAMSHA), the following findings were
made regarding drug and alcohol abuse in the workplace: Eight point
nine percent of the population aged twelve or older, were current
illicit drug users; that one-third of the persons who reported
using marijuana reported that they had used it on twenty or more
days in the past month; that almost three percent of the population
were nonmedical users of cocaine, hallucinogens and
psychotherapeutic drugs; that of the illicit drug users aged
eighteen or older in the year two thousand two, seventy-four point
six percent were employed; that nineteen percent of the national
workforce who died on the job, who were drug or alcohol tested,
tested positive for drugs or alcohol at the time of their death;
that the highest percentage of workers reporting alcohol and drug
abuse were in the mining and construction industries, with fifteen
point seven percent of that sector reporting heavy alcohol use in
past month at time of the survey and twelve point three percent
reporting that they had used illicit drugs in the month preceding
the survey;
(c) That employees in the mining industry have job
responsibilities involving their own safety and the safety of their
fellow miners and that all of West Virginia's miners deserve a
drug-free workplace;
(d) That many mine operators recognize that the use of illegal
drugs and being under the influence of alcohol while working in the
mining industry represents a serious threat to the health and
safety of all miners;
(e) That many mine operators in West Virginia have taken steps
to improve mine safety at their particular mines by establishing
drug testing programs to ensure that miners are able to perform
their jobs free from the influence of illegal drugs or being under
the influence of alcohol while working and that persons who have
tested positive for illegal drugs and have been discharged are able
to simply begin working for another employer, thereby endangering
the safety of persons at their new place of employment; and
(f) That instituting drug-free workplace programs in
coordination with the Office of Miners' Health, Safety and Training
and its licensing and certification powers, will help ensure a
safer workplace for all miners in West Virginia.
§22A-11-2. Additional powers of the Office of Miners' Health,
Safety and Training.
(a) In addition to the other powers provided in this chapter,
the Director of the Office of Miners' Health, Safety and Training is hereby authorized to:
(1) Require the implementation of drug-free workplace programs
as provided in this article; and
(2) Assess a reasonable fee of all persons seeking
certification pursuant to the provisions of this chapter which fee
shall be used solely to pay for the costs of administering the
drug-free workplace provisions provided herein. The director shall
annually set the amount of such fee.
§22A-11-3. Definitions.
The following definitions shall apply to the provisions of
this article:
(a) "Alcohol" means ethyl alcohol, ethanol, hydrated oxide of
ethyl or spirits of wine, from whatever source or by whatever
process produced.
(b) "Drug and Alcohol Free" means testing negative on any
certified drug and alcohol test, which shall be in accordance with
subsection (d) of this section.
(c) "Discharge for positive drug or alcohol test" means the
good faith discharge or termination from employment of an employee
who tests positive on a confirmed substance abuse test, refuses to
take a test or adulterates a specimen for testing under a drug-free
workplace program.
(d) "Drug and alcohol testing" means any screen for drugs
which includes, at a minimum: alcohol, amphetamines, cannabinoids (THC), cocaine, opiates and phencyclidine. Employers may use
additional drug screens. All specimens must be certified by a
Substance Abuse and Mental Health Services Administration (SAMHSA)
or Federal Department of Transportation (DOT)certified lab and
threshold detection levels of drugs and alcohol shall be in
accordance with SAMHSA or College of American Pathologists-Forensic
Urine Drug Testing (CAP-FUDT) guidelines.
(e) "Drug-free Workplace Program" is a private employer
program which includes written policies prohibiting safety
sensitive employees working in, on or around coal mines to be under
the influence of illegal drugs or alcohol at work and which
requires substance abuse testing and employee confidentiality
provisions. Testing of employees under this program shall be at
the expense of the employer.
(f) "Illegal drugs" means amphetamines, barbituric acid,
lysergic acid, diethylamide, cannabinoids, cocaine, phencyclidine
(PCP), methadone, methaqualone, opiates, barbituates,
benzodiazepines propoxyphene or a metabolite of any of these
substances or any other substance which is unlawful under the
Controlled Substances Act and has not been prescribed by the
employee's treating physician or is present in excess of
therapeutic level.
(g) "Medical Review Officer" means a licensed physician
trained in the field of alcohol and drug testing who provides medical assessment of positive test results, requests reanalysis if
necessary and makes a determination whether or not alcohol or
illegal drugs use has occurred based on the test specimen and
applying the Substance Abuse and Mental Health Services
Administration's (SAMSHA) Medical Review Officer Manual and the
Mandatory Guidelines for Federal Workplace Drug Testing Programs
(69 F.R. 19653 et seq.), DOT or CAP-FUDT guidelines.
(h) "Safety Sensitive" means: (1) Any position in a mining
operation where that person's impaired performance may, directly or
indirectly, result in an incident affecting the health and safety
of the employees, co-workers, customers, customer employees, the
public or damage to property or the environment, including, but not
limited to, those positions, the duties of which require the
employee, regularly or from time to time, to be in an area of a
mine or other facility containing operating or mechanical equipment
where the employee's actions or failure to act could result in such
incident; or (2) those positions which include responsibility for
the engineering, inspection, construction, operation or maintenance
of equipment/machinery or employee safety where the employee's
actions or failure to act could result in such incident; or (3)
executive, managerial or supervisory positions with direct or
indirect supervision of employees who would be considered
safety-sensitive under this policy.
(i) "Substance abuse" is the use of illegal drugs or being under the influence of alcohol while at work with a blood alcohol
concentration of four tenths of one percent or greater.
(j) "Testing positive" means a drug or alcohol test result
from a SAMHSA or DOT certified lab at threshold detection levels or
greater as set forth in the SAMHSA, DOT or CAP-FUDT guidelines,
referred to in this article.
§22A-11-4. Drug-free workplace programs.
(a) All mine operators shall create drug-free workplace
programs covering all employees in safety-sensitive positions;
(b) All companies providing safety-sensitive services to mine
operators shall create drug-free workplace programs covering all of
their employees who perform safety-sensitive work for a mine
operation;
(c) Any mine operator whose worksite has specific safety
hazards necessarily encountered by employees traveling on mine
property, may, at its option and as a business necessity, create
drug-free workplace programs covering all employees, consistent
with drug and alcohol testing allowed under the Americans With
Disabilities Act.
(d) Employers who implement drug-free workplace programs under
this article, cannot be sued for the good faith discharge of an
employee whose confirmed drug test is positive for drugs or alcohol
while working in, on or around coal mines in West Virginia, or who
discharge for an employee's refusal to take a test or where there is evidence of an adulterated specimen. Notwithstanding any other
provision in this code to the contrary, the Board of Appeals does
not have the authority to reinstate a discharged employee to a
previously held private sector job, where that discharge was the
result of a confirmed positive drug or alcohol test.
§22A-11-5. Positive drug tests as breach of duty.
(a) Breach of Duty -- If a mine foreman, assistant mine
foreman, fireboss or any other person certified under this chapter
undergoes a drug test administered by his or her employer, where
there is a confirmed positive illegal drug test result as defined
in subsections (d) and (f), section three of this article or for a
blood alcohol concentration of four tenths of a percent or greater
while working or an employee refuses a test or there is evidence of
an adulterated specimen, it is hereby deemed a breach of duty:
Provided, That for the purposes of this section, any drug test
administered by an operator shall be administered in accordance
with the provisions of subsection (d), section three of this
article and be performed pursuant to a drug free workplace program
as defined in subsection (e) of section three of this article.
(b) Charge of breach of duty -- Upon receipt of a confirmed
positive drug test result, a refusal to take a test or evidence of
an adulterated specimen the operator or employer shall report such
information to the director within seven days, who shall promptly
file a charge of breach of duty with the board of appeals. The director shall maintain a file of each charge and of all related
documents which shall be open to medical review officers. The
Board of Appeals shall evaluate a charge filed under this section
and conduct a hearing in accordance with the requirements and
guarantees of section thirty-one, article eight of this chapter.
A confirmed positive test for illegal drugs or an alcohol test
showing a blood alcohol concentration of four-tenths of a percent
or greater while working, the refusal to take a drug test or the
adulteration of a specimen are all good cause to suspend or revoke
a certification.
§22A-11-6. Drug testing in connection with mine accidents.
(a) The Office of Miners' Health, Safety and Training may
require drug and alcohol testing of persons who are or have been on
mine property to determine whether the presence of alcohol or
illegal drugs are a potential contributing factor in any mine
accident in which serious physical injury or loss of life occurs.
Any accident reportable under section sixty-six, article two, of
this chapter shall be a mine accident for which the Office of
Miners' Health, Safety and Training may require such drug and
alcohol testing.
(b) The director or his or her designee may order testing of
all persons who: (1) Were working in the immediate area of the
accident; or (2) in the judgment of the director or his or her
designee, may reasonably have contributed to or witnessed the accident or fatality.
(c) The post-accident testing permitted by this section shall:
(1) Meet all guidelines set forth in subsections (d) and (f),
section three of this article; (2) be paid for by either the
employer or the Office of Miners' Health, Safety and Training; and
(3) be performed on samples obtained within eight hours of the
accident.
(d) Any confirmed positive test results required by this
section shall be provided to the employer of the person tested
under this section.
(e) Alcohol and eleven-panel drug testing shall be performed
on victims when death occurs on mine property. The testing
pursuant to this subsection may be performed on specimens of either
blood, saliva, or other appropriate bodily fluids and in accordance
with the provisions of subsections (d) and (f), section three of
this article. Confirmed positive test results shall be provided to
the employer of any victim tested pursuant to this section.
§22A-11-7. Additional requirements for certification.
(a) In addition to the requirements contained in article eight
of this chapter, the Board of Miner Training, Education and
Certification shall require all miners in training and current
miners, whether surface or underground, and all safety-sensitive
persons regularly working in or around coal mines, to be certified
free from the use of alcohol or illegal drugs while working.
(b) The board shall ensure that substance abuse training and
education, including an explanation of an employer's drug-free
workplace program, be required as part of the certified miner's
annual retraining conducted in a class room after the first day of
August, two thousand seven: Provided, That this requirement shall
not apply to certified persons who received the one hour initial
substance abuse training and education as part of their eighty hour
new miner training. In addition to the training required of all
certified miners, supervisory personnel shall be required to
receive additional alcohol and substance abuse awareness training
annually to include information regarding the signs of being under
the influence of drugs or alcohol and their employer's drug-free
workplace program.
§22A-11-8. Drug-free status required for certification.
In addition to any other requirements for certification
imposed by the provisions of article eight of this chapter, any
applicant for a permit of apprenticeship-underground miner, a
permit of apprenticeship-surface miner or a certificate of
competency and qualification pursuant to sections three, four and
six of this article, shall submit proof of his or her drug-free
status and undergo at least one hour of classroom training
dedicated to alcohol and substance abuse training.
§22A-11-9. Office of Miners' Health, Safety and Training Drug
Testing Program.
(a) The office shall provide a drug testing program for all
applicants for a permit of apprenticeship-underground miner, a
permit of apprenticeship-surface miner, a certificate of competency
and qualification, and certification as a mine foreman or fireboss.
(b) The minimum testing protocol for any test administered
under the drug testing program shall be an eleven panel urine test
that shall test for the following substances: amphetamines,
cannabanoids/THC, cocaine, opiates, phencyclidine (PCP),
benzodiazepines, propoxyphene, methaqualone, methadone,
barbiturates, and synthetic narcotics and for blood alcohol
concentration at four-tenths of a percent or greater.
(c) All drug tests shall be administered in accordance with
the standards, procedures and protocols for collection and testing
as referred to in subsection (d) of this section.
(d) The results of any drug test shall be evaluated by a
medical review officer in accordance with the requirement and
procedures set forth in the Substance Abuse and Mental Health
Services Administration's Medical Review Officer Manual and the
Mandatory Guidelines for Federal Workplace Drug Testing Programs.
(69 F.R. 19653 et seq.)
(e) The office may contract with private entities to
administer the required drug tests: Provided, That any testing
administered by such a company must meet the minimum requirements
of subsection (d), section three of this article.
(f) The costs of any drug test administered by the office
shall be paid for by the applicant: Provided, That any fees
charged by the office shall not exceed the office's actual cost of
collection, analysis and evaluation: Provided, however, That if an
applicant is granted certification and subsequently obtains
employment by an operator or if that certified miner applies and
receives an additional certification, the applicant's employer
shall reimburse the applicant for the cost of one drug test per
certification obtained herein.
§22A-11-10. Other drug testing programs.
The director may accept the results of a drug test from
entities other than those retained by the office under the
following conditions:
(a) The applicant shall submit a written request to the
director for the acceptance of the results of a drug test that has
been administered within the thirty days immediately preceding the
request;
(b) The test shall be administered by a laboratory certified
in accordance with this provisions referred to subsection three (d)
of this article; and
(c) The test shall meet the minimum requirements set forth in
subsections (b), (c) and (d), section nine of this article.
§22A-11-11. Results; retesting; appeal.
(a) The results of a drug test administered by the Office of Miners' Safety and Training shall be provided to the applicant at
the time that the office notifies the applicant of the granting or
refusal of the application.
(b) Any application for a permit of apprenticeship-underground
miner; a permit of apprenticeship-surface miner, a certificate of
competency and qualification, or certification as a mine foreman or
fireboss shall be refused if any one of the following conditions
occur:
(1) The applicant's positive drug tests, as defined in
subsections (d) and (f), section three of this article are deemed
to fail by a medical review officer;
(2) The applicant's drug test results demonstrate the
submission of an adulterated specimen; or
(3) The applicant refuses to submit to a drug test as required
by section nine of this article.
(c) Any applicant who is refused a permit of apprenticeship or
certification due to the results of his or her drug test may
request a second test, to be administered at the applicant's
expense, by submitting a written request to the director within ten
days of receiving the results of the initial drug test: Provided,
That any applicant that is refused a permit of apprenticeship or
certification due to the results of a second drug test may not
reapply for a permit of apprenticeship or certification until at
least three months have passed since the initial refusal, the applicant has successfully completed a substance abuse program and
has submitted proof of his or her drug-free status in accordance
with the provisions of this article.
(d) Any applicant aggrieved by an action of the director in
failing or refusing to issue a certificate of qualification and
competency may, within ten days' notice of the action complained
of, appeal to the director pursuant to the provisions of section
seven of this article.
§22A-11-12. Confidentiality of results.
(a) Records of drug or alcohol test results, written or
otherwise, received by the Office of Miners' Health, Safety and
Training, its contractors, subcontractors, or other employees are
confidential communications and exempt from disclosure under
article one of chapter twenty-nine-b of this code except as
follows:
(1) Where release of the information is authorized solely
pursuant to a written consent form signed voluntarily by the person
tested, the consent form shall contain the following: (A) The name
of the person who is authorized to obtain the information; (B) the
purpose of the disclosure;(C) the precise information to be
disclosed; (D) the duration of the consent; and (E) the signature
of the person authorizing the release of the information; or
(2) Where the release of the information is compelled by a
hearing officer or court of competent jurisdiction pursuant to an appeal taken under section nine, article one, chapter twenty-two-b
of this code;
(3) Where release of the information is relevant to a legal
claim asserted by the applicant;
(4) Where the information is used by the entity conducting
drug or alcohol testing when consulting with legal counsel in
connection with matters brought under or related to 22A-2B-1 et
seq. of this code; or in its defense of civil or administrative
actions related to the testing or results; or
(5) Where release of the information is deemed appropriate by
the Office of Miners' Health, Safety and Training or a court of
competent jurisdiction in disciplinary proceeding brought under the
terms of section five of this article.
(b) Information on positive illegal drug and alcohol test
results for tests administered pursuant to this article shall not
be released or used in any criminal proceeding against the
applicant.
§22A-11-13. Additional training of emergency personnel in coal
mines.
Notwithstanding any provision to the contrary, the training of
the emergency medical services personnel employed at certain mines
pursuant to the provisions of article ten of this chapter must also
include substance abuse training as well as alcohol and substance
abuse awareness training to assist such personnel in the ready identification of the symptoms of intoxication.
§22A-11-14. Severability.
If any provision of this article or application thereof to any
person or circumstance is held invalid, the invalidity does not
effect other provisions or applications of the article
which can be
given effect without the invalid provision or application, and to
this end the provisions of this article
are severable.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-2. Disbursement where injury is self-inflicted or
intentionally caused by employer; legislative
declarations and findings; "deliberate intention"
defined.
(a) Notwithstanding anything contained in this chapter, no
employee or dependent of any employee is entitled to receive any
sum from the Workers' Compensation Fund, from a self-insured
employer or otherwise under the provisions of this chapter on
account of any personal injury to or death to any employee caused
by a self-inflicted injury or the intoxication of the employee.
Employees who work for an employer and who are covered by a
drug-free workplace program implemented under the state's mine
safety laws under chapter twenty-two-a and who test positive for
drugs or alcohol following a work related accident shall be
presumed to be intoxicated. These employees testing positive for drugs and alcohol and who are therefore intoxicated at the time of
the work related accident shall lose their right to receive
indemnity benefits from the Workers' Compensation Program and any
common law rights to sue the employer for damages where the
accident was proximately caused by the employee's intoxication:
Provided, That such injured employees shall remain eligible for
payment of medical benefits for the treatment of any injuries
incurred on the job, regardless of testing positive for drugs or
alcohol.
Upon the occurrence of an injury which the employee asserts,
or which reasonably appears to have, occurred in the course of and
resulting from the employee's employment, the employer may require
the employee to undergo a blood test for the purpose of determining
the existence or nonexistence of evidence of intoxication pursuant
to rules for the administration of the test promulgated by the
board of managers: Provided, That the employer must have a
reasonable and good faith objective suspicion of the employee's
intoxication and may only test for the purpose of determining
whether the person is intoxicated.
(b) For the purpose of this chapter, the commission may
cooperate with the Office of Miners' Health, Safety and Training
and the State Division of Labor in promoting general safety
programs and in formulating rules to govern hazardous employments.
(c) If injury or death result to any employee from the deliberate intention of his or her employer to produce the injury
or death, the employee, the widow, widower, child or dependent of
the employee has the privilege to take under this chapter and has
a cause of action against the employer, as if this chapter had not
been enacted, for any excess of damages over the amount received or
receivable in a claim for benefits under this chapter, whether
filed or not.
(d) (1) It is declared that enactment of this chapter and the
establishment of the Workers' Compensation System in this chapter
was and is intended to remove from the common law tort system all
disputes between or among employers and employees regarding the
compensation to be received for injury or death to an employee
except as expressly provided in this chapter and to establish a
system which compensates even though the injury or death of an
employee may be caused by his or her own fault or the fault of a
co-employee; that the immunity established in sections six and
six-a, article two of this chapter is an essential aspect of this
Workers' Compensation System; that the intent of the Legislature in
providing immunity from common lawsuit was and is to protect those
immunized from litigation outside the Workers' Compensation System
except as expressly provided in this chapter; that, in enacting the
immunity provisions of this chapter, the Legislature intended to
create a legislative standard for loss of that immunity of more
narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful,
wanton and reckless misconduct; and that it was and is the
legislative intent to promote prompt judicial resolution of the
question of whether a suit prosecuted under the asserted authority
of this section is or is not prohibited by the immunity granted
under this chapter.
(2) The immunity from suit provided under this section and
under sections six and six-a, article two of this chapter may be
lost only if the employer or person against whom liability is
asserted acted with "deliberate intention". This requirement may
be satisfied only if:
(i) It is proved that the employer or person against whom
liability is asserted acted with a consciously, subjectively and
deliberately formed intention to produce the specific result of
injury or death to an employee. This standard requires a showing
of an actual, specific intent and may not be satisfied by
allegation or proof of: (A) Conduct which produces a result that
was not specifically intended; (B) conduct which constitutes
negligence, no matter how gross or aggravated; or (C) willful,
wanton or reckless misconduct; or
(ii) The trier of fact determines, either through specific
findings of fact made by the court in a trial without a jury, or
through special interrogatories to the jury in a jury trial, that
all of the following facts are proven:
(A) That a specific unsafe working condition existed in the
workplace which presented a high degree of risk and a strong
probability of serious injury or death;
(B) That the employer, prior to the injury, had actual
knowledge of the existence of the specific unsafe working condition
and of the high degree of risk and the strong probability of
serious injury or death presented by the specific unsafe working
condition;
(C) That the specific unsafe working condition was a violation
of a state or federal safety statute, rule, whether cited or not,
or of a commonly accepted and well-known safety standard within the
industry or business of the employer, as demonstrated by competent
evidence of written standards or guidelines which reflect a
consensus safety standard in the industry or business, which
statute, rule, regulation or standard was specifically applicable
to the particular work and working condition involved, as
contrasted with a statute, rule, regulation or standard generally
requiring safe workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth
in subparagraphs (A) through (C), inclusive, of this paragraph, the
employer nevertheless intentionally thereafter exposed an employee
to the specific unsafe working condition; and
(E) That the employee exposed suffered serious compensable
injury or compensable death as defined in section one, article four, chapter twenty-three whether a claim for benefits under this
chapter is filed or not as a direct and proximate result of the
specific unsafe working condition.
(iii) In cases alleging liability under the provisions of
paragraph (ii) of this subdivision:
(A) No punitive or exemplary damages shall be awarded to the
employee or other plaintiff;
(B) Notwithstanding any other provision of law or rule to the
contrary, and consistent with the legislative findings of intent to
promote prompt judicial resolution of issues of immunity from
litigation under this chapter, the court shall dismiss the action
upon motion for summary judgment if it finds, pursuant to rule 56
of the rules of civil procedure that one or more of the facts
required to be proved by the provisions of subparagraphs (A)
through (E), inclusive, paragraph (ii) of this subdivision do not
exist, and the court shall dismiss the action upon a timely motion
for a directed verdict against the plaintiff if after considering
all the evidence and every inference legitimately and reasonably
raised thereby most favorably to the plaintiff, the court
determines that there is not sufficient evidence to find each and
every one of the facts required to be proven by the provisions of
subparagraphs (A) through (E), inclusive, paragraph (ii) of this
subdivision; and
(C) The provisions of this paragraph and of each subparagraph thereof are severable from the provisions of each other
subparagraph, subsection, section, article or chapter of this code
so that if any provision of a subparagraph of this paragraph is
held void, the remaining provisions of this act and this code
remain valid.
(e) The reenactment of this section in the regular session of
the Legislature during the year one thousand nine hundred
eighty-three, does not in any way affect the right of any person to
bring an action with respect to or upon any cause of action which
arose or accrued prior to the effective date of the reenactment.
(f) The amendments to this section enacted during the two
thousand five session of the Legislature shall apply to all
injuries occurring and all actions filed on or after the first day
of July, two thousand five.
NOTE: The purpose of this bill is to expand the number of
mine employees who may be tested for drug or alcohol abuse by
requiring all mine operators to create drug-free workplace programs
applicable to safety-sensitive employees on mine property. Safety
sensitive employees are defined to include engineering and certain
operational staff. It would also require vendors providing such
employees to implement the same program. The bill also allows
employers who discharge employees who test positive to be immune
from wrongful discharge lawsuits. The bill requires the suspension
of mining certifications for positive confirmed drug tests and
provides a mechanism for the reinstatement of certificates upon
meeting minimum requirements of being drug free. In addition, the
bill proposes minimum drug and alcohol awareness educational
requirements for miners and emergency services personnel in mines.
The bill also provides that employees who test positive lose the
right to receive indemnity benefits and common law right to sue.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.