Drug-Testing Proposal in Governor Tomblin's Mine Safety Bill Called a "Distraction"

February 7, 2012
By Wolfe Law Firm on February 7, 2012 4:27 PM |

863452_sign.jpgWill Governor Earl Ray Tomblin's proposal to have mine workers tested for drugs distract from other necessary mine safety repairs? That is what Independent Investigator Davitt McAteer and the United Mine Workers fear.

The drug testing element is part of an overall mine safety bill introduced by the governor. Governor Tomblin's bill is one of two being considered, with the other being introduced by House Speaker Rick Thompson. Both bills have provisions for criminal penalties and automatic shutdown of equipment if the methane levels are too high. However, they differ on other crucial elements. Governor Tomblin's bill features the industry-backed drug testing requirement, while Thompson's features more whistleblower protections and family involvement in investigations.

McAteer calls the drug testing provision a "distraction" and emphasizes that it was not what killed mine workers in the 2010 Upper Big Branch disaster. Autopsies of those killed in the disaster showed no illicit drugs in the mine workers' systems. Instead, the cause of death was decidedly due to Massey Energy's failure to follow safety rules governing mine ventilation and the cleanup of coal dust, which can be highly explosive. McAteer pointed out that nearly three-fourths of the mine workers killed in the Upper Big Branch explosion had black lung disease. A strict limit on the legal level of coal dust in underground mines would help prevent this. McAteer recommended legislation requiring mine companies to use coal-dust meters that would measure "explosibility" levels and also require companies to install ventilation monitors that would keep track of fresh-air flow underground. As part of the settlement, Alpha Natural Resources, which purchased Massey Energy Company, has agreed to implement these changes.

We at the Wolfe Law Firm believe that while worker behavior can be at fault for an accident, creating a safe workplace should be the priority -- especially in an industry as dangerous as coal mining. As McAteer noted, West Virginia is still a leader in mining fatalities. What would happen, though, if the law were passed and coal mine workers needed to be tested?

Most employers are required to carry workers compensation insurance. When you or your loved one is injured in a workplace accident, you would be eligible to receive workers compensation in place of wages during the recovery, even if your conduct contributed to the accident. However, there are exceptions. In many states, if drugs or intoxication contributed to the accident, the worker may be denied workers compensation. That is likely the reason mining companies are pushing to have mine workers tested -- because the company could argue that drugs or alcohol caused, or contributed to, the accident -- or that the worker should be de facto denied just for having had alcohol or used drugs. When that happens, it would be best to find a West Virginia personal injury attorney to explain your options.

In non-workplace situations, a person who uses drugs or alcohol before an accident might be found to be the most at fault for an accident. Under West Virginia's modified comparative fault system, if you are 50% or more at fault for an accident, you are not permitted to collect damages in a lawsuit.