Here’s a better approach to achieving alcohol and drug free mines.

by Peter Gould and Hugh Thatcher

The Mine Safety and Health Administration (MSHA) has proposed a new substance abuse rule.  The public comment period on the rule ended Oct. 29, 2008. The goal of the rule is laudable – every miner has a right to work in a drug- and alcohol-free workplace. But the proposed rule, if implemented, will upend already-established drug and alcohol policies and programs, impose a “one-size-fits-all” program upon all mine operators, regardless of size, and require full compliance with the new standard within one year for new substance abuse programs, and within two years for existing programs. While the proposed rule is too long to address in detail in this article, a few illustrations will suffice to point out the seriousness with which mine operators should take this proposed rule, and to highlight the sweeping changes the rule will require.

Key portions of MSHA’s proposed rule

▪     Drug and alcohol testing is mandatory for those miners who perform “safety-sensitive job duties” and their supervisors. Safety-sensitive job duties are defined as “any type of work activity where a momentary lapse of critical concentration could result in an accident, injury, or death.” All persons who must receive comprehensive miner training under Part 46 and Part 48 are deemed to have safety-sensitive job duties.

▪     An operator must conduct pre-employment drug testing, and pre-performance alcohol testing, for those miners who perform safety-sensitive job duties. An operator must also conduct random unannounced drug and alcohol testing of at least 10 percent of those miners who perform safety-sensitive job duties and the management who supervise such miners. Testing must be unpredictable, periodic, and irregularly scheduled.

▪     Post-accident drug and alcohol testing is required for all MSHA-reportable events, must be conducted on every miner whose work could have contributed to the accident/injury/death as soon as practicable, and must be conducted no later than eight hours after the incident for alcohol and 32 hours for drugs.

▪     An operator must conduct drug and alcohol testing when there is “reasonable suspicion” to believe that a miner has misused drugs or alcohol. Trained supervisors may find “reasonable suspicion” based upon “specific, contemporaneous, articulable observations” of the “appearance, behavior, speech, or body odors of the miner.”

▪     A miner who tests positive for a prohibited substance may not be terminated for the first violation unless the miner has also engaged in separate conduct that warrants termination.

▪     A miner who tests positive may only return to safety-sensitive duties if a substance abuse professional (SAP) confirms that the miner has followed the SAP’s education and treatment recommendations, and the miner participates in follow-up testing as determined by the SAP.  Thus, even if the operator does not have an employee assistance program that addresses substance abuse, the operator must hire a SAP to perform certain functions mandated by the rule.