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West Virginia Miners Deserve Drug Free Workplaces

It’s the rare coal company that has not encountered illicit drug use among its employees. Employers report finding evidence of marijuana cigarettes or pipes in the cabs of both surface and underground equipment. One company that had a video camera running in a supply area was stunned to see an employee crushing pills and snorting them in powdered form using a rolled up dollar bill. If the pills were prescribed, that cannot have been the delivery method prescribed by his physician. To be sure, miners are not the only persons who respond to the siren-call of “getting high”, but statistics for the mining profession are higher than other professions and these statistics are not conducive to the safe work environment our miners deserve.

The Substance Abuse and Mental Health Services Administration reported in 2003 that more than 12% of miners reported illicit drug use and 15.7% reported heavy alcohol use. Ten percent of miners said they were dependent on drugs or alcohol. More than one mining accident has been suspected of being related to drug or alcohol use, even if it was not determined to be the cause of the accident. Two recent fatalities in West Virginia have had documented illicit drug use associated with those fatal mine accidents.

In 2005, there was a fatal accident at Tiny Creek No. 2’s underground mine in Alum Creek, WV. At the time of his death, the deceased had hydrocodone tablets stuffed into a cigarette package tucked in a pocket, as well as hydrocodone in his system. MSHA’s investigation report concluded that the mental and/or physical abilities of the deceased operator may have been influenced by the presence of the narcotic hydrocodone.

In 2008, a union miner, Coulson, while driving a locomotive at McElroy’s mine in northern WV, killed a co-worker with the locomotive. After the accident, Coulson tested positive for both hydrocodone, which he had been prescribed, and oxycodone, which was illicit drug use. Following this fatal accident, the West Virginia Office of Miner Health Safety and Training (OMHST) tried to withdraw Coulson’s miner certificate. The issue of whether the OMHST could do so was hotly contested because Coulson’s union brothers, who were witnesses, could not say for sure whether Coulson appeared to be under the influence at the time of the accident; despite the undisputed evidence that Coulson had an illicit intoxicant in his system and had unsafely operated the locomotive so as to result in the death of a co-worker. This debate took three courts to resolve: the Coal Mine Safety Board of Appeals which said the OMHST could not withdraw Coulson’s miner certificate; the Kanawha County Circuit Court which agreed; and, finally, the WV Supreme Court of Appeals which upheld the OMHST’s authority on the unique facts of the case.

While MSHA has issued drug testing regulations to protect hard rock miners, it has declined to do so for coal miners. It has been left to individual mining states to protect their own miners. In 2006, Kentucky instituted a mandatory drug testing law to protect its miners from co-workers willing to put others at risk. Virginia followed suit in 2007.

Both state laws provide an opportunity to have a miner’s license reinstated after a period of time and upon passing a drug screen. Regulators and industry people, say these laws have been effective at reducing injuries and absenteeism, as well as reducing illicit drug use in and around coal mining communities. Pre-law, if a coal company administered a random drug test, a miner could just quit and go apply for work down the road, where the company might not be drug testing. In Kentucky and Virginia that practice has stopped. In West Virginia though, that’s exactly what happens. A miner engaged in illicit drug use can simply go down the road to another mine where he can put other co-workers at risk. Plus, those Kentucky and Virginia miners who wish to avoid their state’s law can and do come to here to work.

Why is this happening? Despite efforts in 2007, the West Virginia Legislature scuttled drug testing legislation patterned after Kentucky’s drug free mine safety laws. At the time, UMWA spokesperson, Phil Smith, spoke out against the proposed legislation, claiming other issues should be dealt with instead. Mike Caputo, a UMWA Representative and House of Delegate member told a newspaper that illicit drug use and proposed drug testing legislation was simply a smoke and mirrors thing.

It is not a smoke and mirrors thing. West Virginia has an illicit drug problem. It is not going away on its own. Employers report that they cannot fill vacancies because of it. In his State of the State, Governor Tomblin said he would introduce mandatory random drug testing for coal miners as part of an enhanced mine safety program. The Governor’s bill would require random substance abuse screening for all coal miners requiring state certification. The legislation would also require annual training on substance abuse and would allow the suspension or revocation of a miner’s license similar to Kentucky’s program.

On the heels of Gov. Tomblin’s State of the State address, House leadership sponsored its own mine safety bill that covered many of the same items covered by the Governor’s bill, but conspicuously absent was mandatory drug testing. Among the sponsors of this competing House bill was Delegate Caputo, who in 2007 called mandatory drug testing a smoke and mirrors thing.

Mandatory drug testing can help protect all of West Virginia miners. It is time for the Legislature to protect our coal miners. Regardless of what the UMWA’s spokesperson may say, no coal miner wants to rely on a drug-addled co-worker for his or her safety.

As seen in The State Journal.

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume II, Number 53


About this Author

Anna M. Dailey, Labor, Employment Partner, Dinsmore Shohl, law firm

Anna Dailey is Managing Partner of the Charleston Office. Her experience in handling a variety of labor and employment matters for clients enables her to become a trusted partner when problems arise. She works with clients in a variety of industries, including energy, manufacturing, and health care, helping them protect their assets and reputation while navigating through challenges and managing risk.

Understanding that a company’s human capitol can often lead to complicated, costly and even damaging issues, Anna works quickly to get to the root...