November 1, 2008
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.
▪ Non-supervisory miners must receive training on substance abuse in addition to existing Part 46 and Part 48 training requirements. New hires must receive at least one hour of training, and refresher training must include at least 30 minutes addressing the topic. Subjects must include the mine’s drug and alcohol policy, the dangers of drug and alcohol use and how it impacts mine safety, actions that must be taken for suspected improper use, and the availability of counseling, rehabilitation, and employee assistance.
▪ Supervisors must receive at least one hour of training as part of their annual refresher. Those supervisors that are authorized to determine “reasonable suspicion” and the need for post-accident testing must receive two hours of initial training regarding the testing requirements, how to spot signs of substance abuse, how to determine when reasonable suspicion and post-accident tests are needed, and when to refer individuals to counseling if there is insufficient evidence of a violation or reasonable suspicion.
▪ Records of drug and alcohol testing are confidential and must be secured. For at least three years, an operator must keep records of the number of workers in safety-sensitive positions, the total number of miners and supervisors tested, the number of positive tests for each prohibited substance, and who was tested and the details of each test and follow-up.
As is set forth above, the proposed rule is detailed and comprehensive. But MSHA sought comments on particulars of the proposed rule, including the list of drugs specifically prohibited, differentiating legitimate from unauthorized uses of prescription drugs, when testing is warranted, the documentation of test results as part of accident investigations, record retention, and regulatory enforcement against operators who fail to comply with the rule.
A proposed alternative
Again – the goal of the proposed rule is one that all operators should heartily embrace. And it is through cooperation that the industry and MSHA will best achieve drug- and alcohol-free operations. The proposed rule, however, unnecessarily changes existing programs that have successfully addressed drug and alcohol misuse and abuse in mining operations, increases program costs, and imposes many new recordkeeping requirements. Moreover, the enforcement of this cumbersome program would place heavy financial burdens on an already financially-strapped agency.
An alternate approach, whereby MSHA works with the industry, should be considered. MSHA could obtain the same – or better – results by adopting a different substance abuse prevention, testing, and enforcement program that builds upon and improves the industry’s experience with drug and alcohol programs. The alternative standard would be simple, and provide as follows:
1) Policy and program
Mine Operators shall develop, adopt and implement a Substance Abuse Prevention, Testing, and Enforcement Program (SAPTEP) consistent with this standard.
All miners shall be provided training in the SAPTEP as an integral part of the New Miner, Newly Employed Experienced Miner, and Annual Refresher Training mandated by applicable regulations.
3) Substance abuse testing
The SAPTEP shall include testing for substance abuse, including pre-employment testing, random testing, for cause testing, and post-accident testing.
4) Substance abuse employee assistance
The SAPTEP and required SAPTEP training shall provide all miners with information about available substance abuse employee assistance services and the role of such services in the SAPTEP.
5) Substance abuse enforcement
The SAPTEP and SAPTEP required training shall detail the role of the mine operator’s discipline policy and procedures, and include the consequences of violating the SAPTEP.
6) Restricted duty
Miners who are suspected of violating the SAPTEP shall not work in jobs where their suspected violation could endanger themselves or others, until the mine operator makes a determination that they do not pose a substance abuse related hazard to themselves or others.
Mine operators shall provide records of compliance to MSHA with this standard upon request.
This alternative proposal will address the core issues that MSHA seeks to cover with the proposed rule, but do so in a manner that will allow mine operators to use existing programs, personnel, infrastructure, and reporting systems. Operators with non-MSHA sites will be able to maintain uniform policies and procedures for all of their employees. And above all, this alternative proposal will allow the industry and MSHA to work together to eliminate drug and alcohol misuse and abuse in our nations’ mines.
Hugh Thatcher is an associate at Patton Boggs LLP’s Denver office. He counsels and represents clients in occupational/mine safety and health law. Thatcher may be reached via phone at 303-894-6179 or via e-mail at firstname.lastname@example.org.
Peter S. Gould is an associate at Patton Boggs LLP. He advises clients on administrative law matters and complex litigation, with a focus on environmental, heath, safety, and land use. Gould may be reached via phone at 303-894-6176 or via e-mail at email@example.com.
It is through cooperation that the industry and MSHA will best achieve drug- and alcohol-free operations.