• The comment period has been extended to October 29, 2008 and a public hearing has been scheduled for October 14, 2008.

Highlights of Proposed Regulation

  • Requires coal and metal/non-metal mines to have drug testing programs for all safety-sensitive personnel.
  • Defines safety sensitive miners: persons who perform duties which are inherently dangerous on a regular and/or recurring basis and who are required to take comprehensive miner training. Also defined as any type of work activity where momentary lapse of critical concentration could result in accident, injury or death. Includes management and administrative personnel who supervise safety sensitive workers.
  • Excludes clerical and general administrative personnel.
  • Requires testing for: pre-employment; randomly at unannounced times; post accident; reasonable suspicion; return to duty for miners violating rule.
  • Operators must have written policy, training program, testing program and referrals for assistance.
  • Training is:
    • 60 minutes for newly hired; plus 30 minutes for retraining annually
    • Supervisors: 2 hours initially; plus 1 hour annually
  • Miners cannot be terminated for first time violations. Miners get job security while seeking appropriate evaluation and treatment after the first positive. First time violators must be reinstated and allowed to resume safety-sensitive job duties, as long as they pass return to duty testing. §66.400
  • Operator must refer first time violators to EAP Program for rehabilitation and/or SAP (substance abuse professional). Does not require employer to have an EAP Program. Subsequent violations can result in discharge.
  • Recordkeeping obligation for 3 years.
  • Drug testing extends to contractors on mine property.
  • Return to work follow-up testing must be at least 6 times in 12 months.

Potential Issues for Comments to Regulations

  1. MSHA's policy sends message that it is tolerating illegal drug consumption for miners, while many employers have a zero tolerance policy against endangering lives of miners. Where a policy is zero tolerance, lives are saved, miners know not to use, because use will result in discharge at a zero tolerance mine.
  2. MSHA should not be dictating to employers what is an or the appropriate discipline for violations of drug testing policies. To do so interferes with the labor relations policies of employers and with some collective bargaining agreements. Many employers currently discharge employees for: confirmed positive drug tests; adulterated drug tests; and refusals to drug test. Most of these same employers do allow employees to step forward before being told to submit to a reasonable suspicion or random test and are given an opportunity to recover from substance abuse without discharge in such cases. Many also use Last Chance Agreements. MSHA, like DOT, should leave the decisions on employment status or discipline to employers.
  3. Prohibiting discharge of first positives eviscerates KY and VA miner safety laws regarding drug testing which are zero tolerance policies. KY passed drug testing legislation in July 2006. Since then 443 certified miners have had mining licenses suspended as of January 1, 2008. Meanwhile KY had its safest year ever in 2007 with no underground fatalities. Miners can get certification back after proving they are drug free. No obligation on operator to keep de-certified miner's job secure. MSHA's proposed regs undercut these state laws making KY and VA mines less safe than they are today.
  4. MSHA's "job security" protection for first positive results appears to also extend to persons who adulterate test specimen (a crime in some states) or who refuse to take drug test. Both are acts of defiance which should be considered insubordination and dischargeable offenses, not an opportunity for job security.
  5. The regulation has no explanation of what "job security" means. There are no time limits for how long a job must be held while someone is recovering in rehabilitation. There is no explanation of any replacement rights of employer to secure someone who can do job while employee gone 30 days or more. There is no mention of who pays for family health benefits which may run $1,000/month for premiums while employee is absent from work while in detox or treatment. There is no mention of coordination with ADA or FMLA rights and obligations.
  6. The ADA recognizes the difference between alcoholism, an addiction caused by a legal substance and illegal drug use. However, MSHA is treating illegal drug use the same as alcoholism. There should be zero tolerance for illegal drug use.
  7. Many mines do not use urine testing and use more reliable testing, such as hair. MSHA's drug regulations should set minimum allowable standards and let states, operators and the marketplace determine if they want to follow a more stringent standard for testing. (See support for this in GAO reports on reliability of urine tests.)
  8. The regulations do not discuss what an operator can or should do if someone who is taking a prescribed drug is still unsafe to himself or others. Such situations occur and the operator must determine if the person can safely perform the essential functions of their job while taking such medications.
  9. Some companies may be opposed to the length of required training.
  10. This regulation with its "job security" provision will likely increase unwarranted Section 105(c) actions. May also result in supervisor facing 110(c)allegations for failing to recognize employee on drugs, while employee gets job security, an untenable situation.
  11. There is no similar OSHA regulation. This is discriminatory to miners, who need to be better protected from illegal drug use.
  12. Ignores increased costs to employers for detox and rehabilitation expenses for persons who would have been discharged under many policies.