Current through Register Vol. XLI, No. 24, June 14, 2024
Section 56-13-5 - Drug Testing Procedure5.1. All employees of OMHST as listed in Section 5.6. of this rule form the test pool and are subject to unannounced, random drug testing procedures.5.2. Implementation of this procedure will be delegated, on a contractual basis, to an entity or corporation approved by the Director.5.3. All employees of OMHST may be directed to submit to reasonable cause drug testing when reasonable cause exists to warrant the testing of such employees.5.4. Any employee of OM HST may be directed to submit to a post-accident drug test when appropriate.5.5. The Director shall cause a randomly selected panel of employees be tested at intervals of his/her choosing. The intent is that twenty-five percent (25%) of all OM HST employees undergo a random drug test annually.5.6. It is the intent of this procedure to include in the random drug test pool those employees whose job responsibilities involve public safety which may impact the health, safety, rights and privileges of others, or with the public welfare. Based upon the foregoing criteria, those employees who are deemed to be eligible for inclusion into the random drug test pool are: b. Mine safety instructors;c. Surface mine inspectors;d. Electrical inspectors; ande. Any employee of OMHST routinely entrusted with a state vehicle.5.7. All random, pre-employment, post-accident and reasonable suspicion drug tests shall include a ten (10) panel urine test for the following substances: 5.8. In addition, all random, pre-employment, post-accident and reasonable suspicion drug tests shall include a chemical test of breath for alcohol. No employee's blood alcohol level shall meet or exceed four one hundredths of one percent (.04) concentration at the time of testing.5.9. All random, pre-employment, post-accident and reasonable suspicion drug tests shall be performed and administered in accordance with the standards and protocols set forth in the United States Department of Transportation's rule found in 49 C.F.R. Part 40, and collected by individuals who are certified as complying with said regulations.5.10. The chemical test of breath shall be an alcohol confirmation test, as provided in 49 C.F.R. Part 40, Subpart M, taken using an evidential breath testing device listed on the National Highway Traffic Safety Administration (NHTSA) most current Conforming Products List and conducted by a breath alcohol technician meeting the training requirements found in 49 C.F.R. Part 40, Subpart J.5.11. All random, pre-employment, post-accident and reasonable suspicion drug tests shall be tested by laboratories certified by the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA) for collection.5.12. Reasonable cause drug testing is based on a totality of circumstances. A variety of factors may be considered when establishing reasonable cause. Such factors may include, but are not limited to, the following: 5.12.1. A pattern of abnormal conduct or specific behaviors or deviations from expected performance including but not limited to:1. Frequent absences/tardiness;2. Serious errors in judgment;3. Numerous accidents both on and off duty;4. Chronic missed deadlines;5. Mood swings, irrational behavior or unpredictable hostility; and/or6. Repeated instances of violations of policies and procedures.5.12.2. Observation, such as direct observation of use and/or physical symptoms of being under the influence of a controlled substance.5.13. The Director may place the employee on administrative leave, pending disciplinary action, upon being notified of a positive and/or a failed random, reasonable suspicion or post-accident drug test result.5.14. Employees who are the subject of a positive and/or a failed random, reasonable suspicion or post-accident drug test shall have the right to request that the split specimen be tested. 5.14.1. Testing of the split specimen shall be performed at the sole expense of the employee at the prevailing rate then charged by the testing company and any such request must be made in writing to the Director by the employee immediately upon notification of an initial positive test result.5.14.2. A different SAMHSA accredited laboratory may be used to perform the test of the split specimen if so requested by the employee.5.14.3. The test of the split specimen will be performed immediately upon receipt of the request and the results thereof will be reported to the Director by the MRO as soon as they are available.5.14.4. In the event the test of the split specimen is a negative test result, OMHST shall reimburse the affected employee all reasonable costs associated with the test of the split specimen.5.15. The Director, at his/her discretion, may afford the employee an opportunity to seek professional medical and/or psychological treatment for substance abuse for a first positive and/or failed random, reasonable suspicion or post-accident drug test. The employee may be required to agree, in writing, to:a. Immediately enroll in a substance abuse treatment program approved by the Director;b. Sign a medical records release authorization, which relates solely to the employee's treatment for substance abuse and provide timely progress reports to the Director;c. Successfully complete the substance abuse treatment program; andd. Submit to unannounced drug tests for a period of not less than twelve (12) calendar months.5.16. The Director may initiate disciplinary action against an employee who violates a provision of this rule even though the affected employee has been afforded an opportunity to seek professional medical and/or psychological treatment.5.17. For purposes of a positive test for THC, the employee may not rely upon a medical prescription or other type of medical permission for marijuana, including a valid identification card issued under W. Va. Code §16A-5-1 et seq. authorizing the employee to access medical cannabis under the West Virginia Medical Cannabis Act.5.18. For purposes of a positive test for THC, the employee may not excuse such a positive test based upon the fact that the THC came entirely from a legal CBD product or any other legal product.5.19. In the event an employee's initial and/or split specimen tests positive and/or the employee fails the drug screening due to having refused to submit a sample or possessing an adulterated sample, and/or the employee submitted a substituted or an adulterated sample, then the Director shall issue an immediate temporary suspension of all certifications held by the employee pending a hearing before the Board of Appeals pursuant to W. Va. Code §22A-1A-2.5.20. All individual records pertaining to random, pre-employment, post-accident and reasonable suspicion drug tests of affected employees shall be deemed confidential medical records and shall not be disseminated except at the express direction of the Director, and without the express written consent of the employee.5.21. The Director may immediately terminate any employee who violates this rule where such termination of the employee is deemed by the Director to be in the best interest of OMHST or the public in accordance with the requirements set forth in W. Va. Code §22A-1-1et seq.5.22. All successful applicants for the position of mine inspector, mine safety instructor, surface mine inspector or electrical inspector shall submit to a pre-employment drug screening test, as set forth in this rule and in the same manner as current employees subject to random, post-accident and reasonable suspicion drug tests, and shall successfully pass such drug screening test before assuming the responsibilities and duties of the applicant's respective job.5.23. In the event a successful applicant for the position of mine inspector, mine safety instructor, surface mine inspector or electrical inspector, and who has not assumed the responsibilities and duties of his or her job, fails the pre-employment drug test, including any subsequent drug screening test utilized to verify the results of the first failed drug screening test, such failure will constitute cause to immediately dismiss the applicant.