West Virginia Code of State Rules › Agency 56 - Miners' Health, Safety And Training › Title 56 - LEGISLATIVE RULE OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING › Series 56-19 - Substance Abuse Screening, Standards and Procedures › Section 56-19-8 - Disciplinary process

Current through Register Vol. XLI, No. 28, July 12, 2024
8.1. Any
				drug and alcohol test required by the employer as part of its substance abuse
				policy and testing program as defined in Section 3.24. shall subject a
				certified person to suspension of his or her mining certifications consistent
				with W. Va. Code §22A-1A-1
et
				seq.
and this rule.
8.2.
				The Board of Appeals shall suspend all certifications possessed by a person who
				has entered into a treatment plan agreement as specified in Section 9.1. of
				this rule or who is found by a preponderance of the evidence to have failed any
				drug or alcohol test; refused to submit to a drug or alcohol test; possessed a
				substituted sample; submitted a substituted sample; possessed an adulterated
				sample; or submitted an adulterated sample. In addition, the Board of Appeals
				shall order that during the suspension period the person shall complete
				substance abuse and/or alcohol counseling and treatment and undergo periodic
				random drug and alcohol tests. The costs of any substance abuse and alcohol
				counseling, treatment and random drug and alcohol tests shall be the sole
				responsibility of the person found to have failed a drug or alcohol
				test.
8.3. Any person who intends
				to challenge the sample collection methods, the laboratory test results, the
				medical review officer's verification of the laboratory test result or the
				chemical test of breath, shall notify the Director of his or her intent. The
				person shall submit the notification in writing, either in person or by mail to
				the Director, at least 14 days prior to the hearing date. The notification
				shall specify, in detail, the challenge the person intends to make.
8.4. If the person submits notification in
				writing to the Director that he/she intends to challenge the laboratory test
				results or the medical review officer's verification of the laboratory test
				result, that person shall have the split sample tested, at his/her expense, at
				a SAMHSA certified laboratory and those results verified by a medical review
				officer. The split sample results and the results of the split sample
				verification by a medical review officer shall be provided to the Director and
				the original medical review officer. No other form of evidence shall be
				admissible to challenge the laboratory test result or the medical review
				officer's verification of the laboratory test result.
8.5. If a person fails to comply with the
				notification requirements of this section, then the sample collection methods,
				the laboratory test results, the medical review officer's verification of the
				laboratory test result, or the chemical test of breath shall be admissible as
				though the person and the Director had stipulated to their
				admissibility.
8.6. No person whose
				certification is suspended or revoked under this rule may perform any duties
				under any other certification issued pursuant to Chapter 22A of the Code during
				the period of suspension imposed by the Board of Appeals or the Office of
				Miners' Health, Safety and Training. Furthermore, no person whose certification
				is suspended or revoked under this rule may apply for or obtain any other
				certification issued pursuant to Chapter 22A of the Code during the period of
				suspension imposed by the Board of Appeals or the Office of Miners' Health,
				Safety and Training, or after his or her certification is revoked.
8.7. The Board of Appeals shall permanently
				revoke all certifications issued by the Office of Miners' Health, Safety and
				Training when the Board finds, by a preponderance of the evidence, that the
				person has violated Section 5.12. of this rule for the second time.
8.8. On any procedural question not regulated
				by the rule, the pertinent provisions of the Administrative Procedures Act
				found in W. Va. Code §29A-5-1
et
				seq.
shall apply.
8.9. Any
				person adversely affected by a final order or decision issued by the Board of
				Appeals is entitled to judicial review thereof pursuant to W. Va. Code
				§29A-5-4.
8.10. A failed drug or alcohol test is a test
				in which the certified person or safety-sensitive person has tested positive
				for a substance listed in Section 5.4. consistent with the standards and
				procedures provided in 49 CFR Part 40. Where a substance listed under Section
				5.4. is not specifically tested for under 49 CFR Part 40, a positive test for
				such a substance shall be determined by the SAMHSA certified laboratory
				consistent with all applicable standards and procedures provided for in 49 CFR
				Part 40.