Under the Influence

AggMan Staff | Published on March 1, 2014

Do operators have to take the blame for intoxicated employees?

 

amandaUntitled-1Amanda E. Ferguson, Contributing Editor

 

On Jan. 1, 2014, Colorado became the first state to fully decriminalize marijuana. Washington will do the same later this year, and 20 other states have already legalized medical marijuana. As the spotlight hovers on marijuana use, many have expected clarification or at least comment from the Mine Safety and Health Administration (MSHA) on the subject. As yet, none has been forthcoming.

In 2008, MSHA announced a proposed rule that would have established Part 66, containing alcohol- and drug-free mine regulations applicable to both metal/non-metal and coal mines. The rule would have required operators to establish drug and alcohol programs, including a written policy and employee education, and would have required miners testing positive on drug and alcohol tests to complete treatment before returning to duty. However, the agency never promulgated the final rule.

Now that marijuana or medical marijuana may be legal in your state, what does it mean when an employee under the influence commits a violation? As operators know, the Federal Mine Safety and Health Act of 1977 (Mine Act) is a strict liability statute. As an operator, you are liable for violations committed by your employees, whether you knew what they were up to or not.

In the only Federal Mine Safety and Health Review Commission (Commission) decision to consider the issue, the Commission imposed strict liability. In Mar-Land Industrial Contractor, Inc., 14 FMSHRC 754 (May 1992), a contractor’s employee at a cement plant performing structural steel work fell 52 feet and died. Investigators later determined that the worker failed to properly secure his belt lines. A toxicological analysis also showed evidence of cocaine in his system. MSHA cited general contractor Mar-Land under the fall protection standard, 30 C.F.R. § 56.15005. At the hearing, Mar-Land raised the defense that it should not be liable for the violation because the individual was under the influence of cocaine. The ALJ rejected that argument and upheld the violation.

The Commission found that Mar-Land was strictly liable for the individual’s failure to wear his belt properly. They held that “[t]he fact that belts are not worn properly is a violation under [§ 56.150005] for which the operator is liable irrespective of employee misconduct.” The Commission’s holding in Mar-Land is limited to the standard at issue, but its reasoning is easily applicable to most other MSHA regulations.

Arguing against strict liability for an impaired miner’s violation may be a losing battle, but the violation’s negligence finding is still up for debate. Ordinarily, an hourly miner’s negligence may not be imputed to the operator for penalty assessment purposes. But operators cannot rely on positive drug tests to excuse them of negligence altogether. Surprisingly, the Commission and its judges have been reluctant to equate a positive drug test with impairment. In several cases, the court refused to find that an employee’s positive drug test meant the employee was actually intoxicated because the operators failed to introduce evidence putting the test results into context. In one case, “the only evidence in the record regarding the side effects of the drug was a document printed off an internet website.” Jim Walter Res. Inc., 28 FMSHRC 983, 993 (December 2006). Similarly, the judge in Mar-Land also refused to find that the miner was impaired as a result of the cocaine in his system. There, the judge found that “there was no evidence in the record that the level of [the metabolite of cocaine] was sufficient to significantly impair [his] concentration and ability to properly secure his safety belt.”

Even if an employee is impaired, if the operator lacks adequate training programs or fails to enforce its policies, the court may still find that operator negligent. The case of Weathers Crushing, Inc., 22 FMSHRC 1032 (August 2000), should serve as a cautionary tale. It was an employee’s first day at the portable crushing facility, and someone else instructed him to use the head of a sledgehammer to clear blockages in the crusher. Later, while clearing the crusher with a sledgehammer, the employee was injured and subsequently died. Marijuana and a pipe were recovered from his pockets, and a hospital drug test indicated marijuana and benzodiazepines in his system. Because the judge found the operator failed to properly train the miner, the new employee’s intoxication was irrelevant.

In contrast, having a strong training program that is duly enforced lessens the risk of being found negligent for an intoxicated miner’s violation. In Newmont Gold Co., 20 FMSHRC 561 (May 1998), a haul truck driver backed through a berm at an elevated dumpsite. The post-accident drug test yielded positive results for marijuana. MSHA cited Newmont for the driver’s failure to maintain control of the mobile equipment, and the judge upheld the violation. The judge, however, commended Newmont for its enforcement of its drug-free policy and noted the operator was “clearly seeking more help from MSHA” to “achieve its worthy goal of a drug-free workplace.” No doubt in response to Newmont’s drug-free policy, the Judge affirmed the Secretary’s negligence designation of “none.”

Logically, MSHA and operators should still approach marijuana as an illegal drug that has no place on a mine site. Federal law prohibits marijuana possession and use, regardless of state laws that may decriminalize marijuana. Under the Controlled Substances Act, 21 U.S.C. § 812, marijuana is classified as a Schedule I controlled substance. U.S. Department of Transportation (DOT) regulations require drug and alcohol testing and prohibit the use of Schedule I substances for any reason.

In mining, safety is everything. Operating a federally regulated mine means that marijuana use by miners is still unacceptable. And now more than ever, an operator’s training and employment policies must be strong, clear, and equally enforced. Operators should review their existing policies and, if necessary, clarify that marijuana use will not be tolerated in the workplace.

Amanda E. Ferguson is an attorney in Jackson Kelly PLLC’s Denver office, where she practices with the Occupational Safety and Health Practice Group. She can be reached at 303-390-0178 or via email at aeferguson@jacksonkelly.com.

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