By Douglas Mishkin and Brian Hendrix
It is now (thankfully) hard to imagine a time when it was acceptable for miners (and other workers) to openly consume alcohol on the job, and the use of illegal narcotics has (thankfully) never been an accepted practice in mining or among miners. Unfortunately, that does not mean that alcohol and drugs have disappeared from the workplace. In 2008, MSHA noted that “in the mining industry, 13.3% of full-time miners were heavy alcohol users and 7.3% admitted that they used illicit drugs within the past month.”
That was not news in 2008, and it would not be news today. Responsible mine operators (like other responsible employers) have long recognized the hazards associated with on-the-job drug and alcohol use and have adopted and implemented hiring practices and drug and alcohol policies designed to address the problem. In particular, drug and alcohol testing is now widely used. What is new is the fact that a host of technological advances have made workplace drug testing substantially more accurate, reliable and useful. Laboratory standards are higher and more consistent. New tests can detect more types of drugs at lower concentrations. Other technological advances enable laboratories to test many samples quickly, allowing faster turn-around and lower costs.
Urine remains the most common specimen used for drug testing, but the accuracy of tests designed to identify drugs in saliva and hair has improved rapidly. In January 2012, the federal Substance Abuse and Mental Health Services Administration adopted recommendations of its Drug Testing Advisory Board to include saliva as an alternative specimen in its Mandatory Guidelines. The devices available to collect saliva and the laboratory protocols available to analyze it have advanced substantially. Similarly, new laboratory protocols for hair testing have both expanded the range of drugs that can be detected in hair and enhanced testing reliability.
Hair and saliva tests present advantages to employers because they minimize opportunities for adulteration, substitution and tampering. They also allow employers to carry out observed sample collections without implicating privacy concerns. New technology that allows employers to perform saliva testing onsite may add to this appeal.
This better and cheaper testing may encourage mine operators to adopt or expand drug testing programs for their employees, inevitably leading to legal questions about and challenges to the validity of such programs. Drug testing of employees in the private workplace largely is governed by state law. Some states have statutes prohibiting or regulating such drug testing. Most of these statutes permit random or suspicion-based testing, although many require a written policy that puts employees on notice of such testing.
The federal statutes that touch on employee medical conditions, such as the Americans with Disabilities Act and the Family and Medical Leave Act, do not address drug testing. Employers with drug testing programs should be careful not to apply their programs in any fashion that might actually, or appear to, discriminate against those with a “disability” as defined by the ADA or a “serious health condition” under the FMLA.
Improved drug testing potentially can play an important role in your workers’ compensation program. You may wish to consider requiring and administering drug testing as part of an injured worker’s treatment or of independent medical examinations of workers. Such testing will help identify workers who are not taking their medication. You might also do so to determine an injured worker’s eligibility for compensation following a workplace injury. A worker who is abusing drugs may be disqualified from coverage.
These new tests may also create both opportunities and challenges for MSHA compliance. MSHA enforces 30 C.F.R. § 56/57.20001, which provides that “[i]ntoxicating beverages and narcotics shall not be permitted or used in or around mines. Persons under the influence of alcohol or narcotics shall not be permitted on the job.” On its face, this is one of MSHA’s more straightforward standards, but compliance with and enforcement of this standard can be tricky. How does an operator ensure that alcohol or narcotics are not used “in or around” a mine, particularly in light of the fact that operators are strictly liable for any such violation? Random drug testing of all employees? Regular searches of miners’ personal effects for drugs or drug paraphernalia? Pre-shift sobriety checks or screening? If an operator conducts random drug tests, is the operator required to share the results of those tests with MSHA if MSHA requests the results? If an operator is not required to share the results with MSHA, can the operator choose to do so?
“It depends” is the short (although frustrating) answer to many of those questions. Real answers largely depend on the specific circumstances in which these questions arise. However, what we can say is that the advent of faster, more reliable and relatively cheaper drug and alcohol tests is a welcome development in the on-going effort to rid mines of drugs and alcohol.
Mishkin is a partner with Patton Boggs LLP. He can be reached at 202-457-6315 or at dmishkin@pattonboggs.com. Hendrix is a partner with Patton Boggs LLP. He can be reached at 202-457-6543 or at bhendrix@pattonboggs.com.
