Current through Register Vol. XLI, No. 21, May 23, 2024
Section 56-19-3 - Definitions3.1. Unless the context in which a word or phrase appears requires a different meaning, all terms used in this rule that are not defined herein shall have the meanings set forth in W. Va. Code §22A-1-2.3.2. Adulterated Specimen. The term "adulterated specimen" shall mean a specimen that has been altered as evidenced by test results showing that the specimen contains a substance that is not a normal constituent or containing an endogenous substance at a concentration that is not a normal physiological concentration.3.3. Alcohol Testing Form. The term "alcohol testing form" shall mean the U.S. Department of Transportation's Alcohol Testing Form (Non-DOT) or a form that substantially conforms with the format set forth in the DOT alcohol testing form.3.4. Board of Appeals. The term "Board of Appeals" shall mean the Board of Appeals created pursuant to W. Va. Code §22A-5-1et seq. and referred to in W. Va. Code §22A-1A-2.3.5. Breath Test or Breath Test for Alcohol. The term "breath test" or "breath test for alcohol" shall mean a chemical test of a person's breath to determine the amount of alcohol he/she has consumed, as provided in 49 CFR 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 CFR Part 40, Subpart J.3.6. Cannabinoids/THC. The term "Cannabinoids/THC" shall mean THC from any source, whether legal or illegal.3.7. Certified Person. The term "certified person" shall have the meaning set forth in W. Va. Code §22A-1-2(d)(3).3.8. Code. The term "Code" shall mean the West Virginia Code of 1931, as amended.3.9. Director. The term "Director" shall mean the Director of the Office of Miners' Health, Safety and Training, and shall include his/her authorized representatives where applicable.3.10. Drug Testing Contractor. The term "drug testing contractor" shall mean any firm, corporation, partnership, or individual performing breath alcohol tests or 10 panel split sample urine drug tests pursuant to this rule.3.11. Duly Licensed, Mental Health Professional. The term "duly licensed, mental health professional" shall mean a psychiatrist, psychologist, professional counselor or substance abuse counselor in the United States who is licensed by, and in good standing with, the licensing authority of the jurisdiction in which the person practices.3.12. Employer. The term "employer" shall mean all operators, independent contractors, subcontractors, or otherwise that employ certified persons who work in mines or employ employees who as part of their employment are regularly present at a mine and who are employed in a safety-sensitive position.3.13. Hazard Training. The term "hazard training" shall mean information or instructions on the site specific hazards a person could be exposed to while at the mine, as well as applicable emergency procedures.3.14. Independent Contractor. The term "independent contractor" shall mean any firm, corporation, partnership, or individual that contracts to engage in the extraction, production, hauling, loading, processing or preparation activities associated with a mine as defined in Section 3.16. of this rule.3.15. Medical Review Officer. The term "medical review officer" shall mean a licensed physician with knowledge of substance abuse disorders, laboratory testing, chain of custody, collection procedures, and the ability to verify positive, confirmed test results. The medical review officer is responsible for receiving and reviewing laboratory results generated by an employer's drug testing program and evaluating medical explanations for certain drug test results and shall possess the necessary medical training to interpret and evaluate a positive test result in relation to the person's medical history or any other relevant biomedical information.3.16. Mine. The term "mine" shall have the meaning set forth in W. Va. Code §22A-1-2(a)(6) and shall include any underground coal mine, surface coal mine, coal preparation plant, coal loadout, or river coal loadout.3.17. Operator. The term "operator" shall mean any firm, corporation, partnership, or individual operating any coal mine or part thereof, as defined in Section 3.16. of this rule, or engaged in the construction of any facility associated with a coal mine.3.18. Pre-employment Testing. The term "pre-employment testing" shall mean the substance abuse testing of any certified person or person to be employed in a safety-sensitive position either prior to hiring or upon hiring by a new operator or new independent contractor, the rehiring of any certified person or person employed in a safety-sensitive position by an operator or independent contractor following a termination of the employment relationship, or transferring to a West Virginia mine from an employer's out-of-state mine to the extent that the substance abuse test required by the employer in the other jurisdiction does not comply with the minimum standards for substance abuse testing required by this rule.3.19. Random Testing. The term "random testing" shall mean that each person subject to testing has a statistically equal chance of being selected for testing at random and at unscheduled times. The selection of persons for random testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with the person's social security number, payroll identification number, or other comparable identifying number. A random test shall be at least 25% of the employees working at a mine or facility annually. Random testing shall be conducted at least 4 times annually.3.20. Refusal. The term "refusal" shall mean a refusal to submit to a drug and alcohol test required by the employer under the substance abuse policy and testing program as defined in Section 3.24. A "refusal" shall be consistent with the standards provided for in 49 CFR Part 40 . If the drug and alcohol test is required by the employer, it is not a defense that the employee or person subject to a pre-employment test believed that the required drug and alcohol testing was not following the standards and procedures provided for in 49 CFR Part 40.3.21. Safety-Sensitive Position. The term "safety-sensitive position" shall mean an employment position where the employee's job responsibilities include duties and activities that involve the personal safety of the employee or others working at the mine.3.22. Serious Accident. The term "serious accident" shall mean an event at a mine which causes bodily injury to an individual which requires such individual to be admitted to a medical facility overnight for reasons other than strains, sprains or observation as determined by a physician.3.23. Split Sample. The term "split sample" shall mean a part of the urine specimen that is sent to a first laboratory and retained unopened, and which is transported to a second laboratory in the event that the employee requests that it be tested following a verified positive test of the primary specimen or a verified adulterated or substituted test result. Said testing shall be conducted in accordance with the standards and procedures of the United States Department of Transportation's rule, 49 CFR Part 40, which may be amended from time to time by the Office of Miners' Health, Safety and Training through legislative rule.3.24. Substance Abuse Policy and Testing Program. The term "substance abuse policy and testing program" shall include pre-employment testing, random testing, and any other testing done to enhance mine safety. Such drug and alcohol testing shall include, at a minimum, a chemical test of breath to determine the presence of alcohol and a 10-panel split sample urine test that complies with the requirements of W. Va. Code § 22A-1A-1et seq. and this rule.3.25. Substance Abuse Treatment Program. The term "substance abuse treatment program" shall mean at least 6 months of substance abuse treatment under the care of a duly licensed mental health professional which includes at least 6 monthly random drug and alcohol tests.