Drug regulation doesn't register
October 13, 2008 By: Michael T. Heenan Pit & QuarryHow do you feel about the Mine Safety and Health Administration (MSHA) telling you not to fire someone you discover is using illegal drugs? MSHA has published a proposed regulation in the Federal Register that would do just that -- and a whole lot more. This proposal is intended as a final mandate for the mining industry absent a successful effort by interested people to convince MSHA that this proposed regulation is not in any way appropriate as published.
To begin, here is what MSHA’s current regulation governing metal and nonmetal mines says on intoxicatingbeverages and narcotics:Intoxicating beverages and narcotics shall not be permitted or used in or around mines. People under the influence of alcohol or narcotics shall not be permitted on the job.
This is simple, straightforward and easily implemented. It has been on the books for years.
Proposed regulation
Now, in turning to the proposed regulation, I am reminded of a U.S. Supreme Court dissent many years ago in a case called Federal Crop Insurance Corp. v Merrill. There, Justice Jackson recognized the realities of federal regulation and the inaccessibility of voluminous detailed bureaucratic requirements for business operators -- in that case farmers.
Justice Jackson stated wisely: To my mind, it is an absurdity to hold that every farmer who insures his crops knows what the Federal Register contains or even knows that there is such a publication. If he were to peruse this voluminous and dull publication as it is issued from time to time in order to make sure whether anything has been promulgated that affects his rights, he would never need crop insurance, for he would never get time to plant any crops. Nor am I convinced that a reading of technically worded regulations would enlighten him much in any event.
We seem to have a case in point with the proposed regulation that would replace the existing simple and straightforward drug and alcohol prohibition. The actual regulation takes up five-and-one-half pages (8½ x 11) of fine print in the Federal Register. The proposed regulation is preceded by 20 pages of explanatory preamble in equally fine print. Printed on good-quality paper (which such a significant document surely must warrant), the whole package is almost a quarter inch thick. This is an astounding piece of work, not just because of its more than 30,000 words, but also because of what they would mandate for all mines.
In detail
The new 30 CFR Part 66 regulation being proposed would require every mine operator “to develop an alcohol- and drug-free mine program to prevent accidents, injuries and fatalities resulting from the misuse of prohibited substances by miners performing safety-sensitive jobs.” It is composed of 21 detailed sections. One section has 24 definitions of terms, but they hardly eliminate ambiguities. Here are the basic obligations that the regulation would impose:
• The mine operator must identify every actual or potential safety-sensitive job duty (evidently everything but administrative).
• The mine operator must identify every mine employee, contractor employee and all mine and contract supervisors who are performing safety-sensitive work (basically everyone on the job).
• The operator must establish and communicate a written drug and alcohol program.
• Training must be conducted for all hourly personnel (60 minutes for new hires, 30 minutes annually thereafter).
• Training must be conducted for all supervisory personnel (two hours for new hires, one hour annually thereafter).
• Operators must direct miners who admit to illegitimate substance use to intervention programs (such as a substance abuse professional).
• Miners who voluntarily admit to illegitimate use of substances prior to testing “shall not be considered as having violated the mine operator’s policy but shall be subject to the return-to-duty process” specified under the regulation.
• Mine operators must do drug and alcohol testing the same as required by the Department of Transportation for over-the-road truck drivers and maintain confidentiality in the process. (There is a whole lot more fine print.)
• Testing must be done pre-employment, randomly at unannounced times, post-accident, on “reasonable suspicion” and on return to duty after violation of the rules.
• Miners who have been selected for random testing “shall be returned to duty immediately following the test and while awaiting the test results.”
• If a miner fails a drug or alcohol test, the operator must not return the miner to “safety-sensitive” work until the miner successfully completes the “return to duty” process.
• No adverse action may be taken with respect to a miner’s pay or benefits pending the outcome of a drug test based on “reasonable suspicion.”
Needless to say, virtually everyone in the regulated community who is aware of this proposal opposes it. Not only are there concerns about the complexity and substantial costs of compliance, this regulation seems to run roughshod over a panoply of other federal requirements, rights of contract and good-faith company policies that have been carefully thought out and successfully implemented over many years. It is beyond the scope of this article to get into all of those problems. The point for the present is, beware of what is in the Federal Register.
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