West Virginia Suspends Regulations Related to Pre-Employment and Random Breath Tests
April 7, 2020
By: Michael T. Cimino and Benjamin J. Wilson
On Tuesday, April 7, 2020, the West Virginia Office of Miners’ Health, Safety and Training (the “WVOMHST”) issued a letter to the Secretary of State of West Virginia, Mac Warner, informing him that the WVOMHST will be suspending the requirements related to preemployment and random breath tests for alcohol as a result of the COVID-19 Pandemic.
Governor Jim Justice declared a statewide State of Emergency on March 16, 2020, to address the growing public health threat created by COVID-19. That same declaration gave state agencies the ability to suspend state regulations and rules if required to help cope with the COVID-19 emergency. On March 23, 2020, and through executive order, Governor Justice issued a “stay-at-home” order, and declared that only essential businesses shall remain open. See E.O. 9-20. In that Order, Governor Justice identified coal mining and coal-fired electric generation facilities, along with all ancillary and support functions, as essential businesses that could remain open.
West Virginia Code of State Rules, Title 56, Series 19 addresses the WVOMHST’s standards for substance abuse screening, standards, and procedures. Specifically, W.Va. Code St. R. § 56-19-5 sets out the duties each operator has in implementing and executing a substance abuse policy and testing program. In that regard, § 56-19-5.4 establishes that “[E]very employer shall include, as part of its substance abuse screening policy and program, a chemical test of breath for alcohol. No person's blood alcohol level shall meet or exceed four one hundredths of one percent (.04) concentration at the time of testing.”
Furthermore, § 56-19-5.5 states that
The alcohol confirmation test shall be a chemical test of breath as provided in 49 CFR Part 40, Subpart M, taken using an evidential breath testing device listed on the National Highway Traffic Safety Administration's (NHTSA) most current Conforming Products List and conducted by a breath alcohol technician meeting the training requirements found in 49 CFR Part 40, Subpart J.
These two regulations form the thrust of the WVOMHST directive.
Stating that the WVOMHST has “been informed that conducting a breath test for alcohol . . . creates a heightened risk of transmitting the Covid-19 virus among coal miners,” the WVOMHST will grant employers the options to suspend the preemployment and random breath tests for alcohol. Through this option, the WVOMHST believes it can assist in greatly reducing the number of breath tests, and therefore reduce the potential exposure to COVID-19.
Therefore, the WVOMHST is suspending the requirements of both W.Va. Code St. R. § 56-19-5.4 and § 56-19-5.5 in their entirety while the State of Emergency order is in place. Coal operators/employers will not be required to conduct a breath test for alcohol when conducting a preemployment or random drug test. However, operators/employers will still be required to conduct breath tests for alcohol for reasonable suspicion tests or serious post-accident tests. And, finally, the WVOMHST will still immediately and temporarily suspend mining certifications of all miners who either fail or refuse a breath test for alcohol, should the employer choose to continue preemployment and random breath tests.
Jackson Kelly remains committed to helping employers navigate this ever-evolving outbreak. This includes guidance for your business operations, but also looking out for the well-being of your employees. Please contact a member of Jackson Kelly’s Workplace Safety and Health Team if you have any questions or concerns.