The West Virginia mine safety legislation being promoted by Gov. Earl Ray Tomblin and the legislative leadership is making its way through the Senate now. But supporters of the bill and the statehouse media seem intent on not being clear with themselves or the public about what the bill does — and doesn’t — do.
As expected, the general take from statehouse reporters ( see here, here and here) when the bill passed the House earlier this week was to focus on emotional speeches and attacks on Don Blankenship, without making providing any specifics about how the legislation doesn’t go very far and doesn’t really address the recommendations of experts who investigated the Upper Big Branch Mine Disaster.
And now we have a report from West Virginia Public Broadcasting that has some fascinating stuff in it about a discussion in a Senate committee about the coal-miner drug testing requirements Gov. Tomblin insisted be in the bill, despite the lack of any evidence that Upper Big Branch had anything to do with miners using drugs or alcohol. Here’s the part I find interesting:
Under brief questioning, Governor Tomblin’s chief counsel assured Senators that miners who fail drug tests will get another chance to get clean before their certificates are revoked. Kurt Dettinger said, “as part of the legislation, the Board of Coal mine Health and Safety will establish guidelines that will be put into legislative rules that will govern the disciplinary action administered by the Board of Appeals.”
OK … so let’s look at what the bill actually says. First, all coal operators would have to programs to randomly test certain of their employees for drugs. Then it goes on to say:
The employer or his or her agent shall notify the director, on a form prescribed by the director, within seven days following completion of an arbitration conducted pursuant to a collective bargaining agreement applicable to the certified person, if any, of discharging a certified person for violation of the employer’s substance abuse screening policy and program. The notification shall be accompanied by a record of the test showing positive results or other violation. Notice shall result in the immediate temporary suspension of all certificates held by the certified person who failed the screening, pending a hearing before the board of appeals pursuant to section two of this article.
And yes, as explained by the governor’s office, the board is charged with writing rules for handling hearings on miners whose positive drug tests are reported to them and whose licenses to work in the industry have been temporarily suspended. And the bill goes on to say this:
The Board of Appeals may suspend the certificate or certificates of a certified person for violation of this article or for any other violation of this chapter pertaining to substance abuse. The Board of Appeals may impose further disciplinary actions for repeat violations. The director shall have the authority to propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code to establish the disciplinary actions referenced in this section following the receipt of recommendations from the Board of Coal Mine Health and Safety following completion of the study required pursuant to section fourteen, article six of this chapter. The legislative rules authorized by this subsection shall not, however, include any provisions requiring an employer to take or refrain from taking any specific personnel action or mandating any employer to establish or maintain an employer-funded substance abuse rehabilitation program.
So, to be clear, the rules required to be written by this bill are not allowed to stop coal companies from firing miners for even a first-offense positive drug test, even if that miner developed a drug problem while taking pain medicine as a result of an on-the-job injury. And, the rules cannot require mine operators to provide substance abuse treatment programs for their workers.
If that’s what Gov. Tomblin and legislative leaders believe is good public policy — allowing employers to throw workers who develop a problem out of their jobs, without any opportunity or help in getting rehabilitated — that’s their right. But if they believe that, shouldn’t they say so and explain why they think that’s in the public interest?
Remember, as has been written here before, the National Mining Association opposed a miner drug-testing rule proposed by the Republican Bush administration specifically because that rule would have required mine operators to give their workers who develop a problem a chance to get clean.