Current through Register Vol. XLI, No. 23, June 7, 2024
Section 56-19-8 - Disciplinary process8.1. Any drug and alcohol test required by the employer as part of its substance abuse policy and testing program as defined in Section 3.24. shall subject a certified person to suspension of his or her mining certifications consistent with W. Va. Code §22A-1A-1et seq. and this rule.8.2. The Board of Appeals shall suspend all certifications possessed by a person who has entered into a treatment plan agreement as specified in Section 9.1. of this rule or who is found by a preponderance of the evidence to have failed any drug or alcohol test; refused to submit to a drug or alcohol test; possessed a substituted sample; submitted a substituted sample; possessed an adulterated sample; or submitted an adulterated sample. In addition, the Board of Appeals shall order that during the suspension period the person shall complete substance abuse and/or alcohol counseling and treatment and undergo periodic random drug and alcohol tests. The costs of any substance abuse and alcohol counseling, treatment and random drug and alcohol tests shall be the sole responsibility of the person found to have failed a drug or alcohol test.8.3. Any person who intends to challenge the sample collection methods, the laboratory test results, the medical review officer's verification of the laboratory test result or the chemical test of breath, shall notify the Director of his or her intent. The person shall submit the notification in writing, either in person or by mail to the Director, at least 14 days prior to the hearing date. The notification shall specify, in detail, the challenge the person intends to make.8.4. If the person submits notification in writing to the Director that he/she intends to challenge the laboratory test results or the medical review officer's verification of the laboratory test result, that person shall have the split sample tested, at his/her expense, at a SAMHSA certified laboratory and those results verified by a medical review officer. The split sample results and the results of the split sample verification by a medical review officer shall be provided to the Director and the original medical review officer. No other form of evidence shall be admissible to challenge the laboratory test result or the medical review officer's verification of the laboratory test result.8.5. If a person fails to comply with the notification requirements of this section, then the sample collection methods, the laboratory test results, the medical review officer's verification of the laboratory test result, or the chemical test of breath shall be admissible as though the person and the Director had stipulated to their admissibility.8.6. No person whose certification is suspended or revoked under this rule may perform any duties under any other certification issued pursuant to Chapter 22A of the Code during the period of suspension imposed by the Board of Appeals or the Office of Miners' Health, Safety and Training. Furthermore, no person whose certification is suspended or revoked under this rule may apply for or obtain any other certification issued pursuant to Chapter 22A of the Code during the period of suspension imposed by the Board of Appeals or the Office of Miners' Health, Safety and Training, or after his or her certification is revoked.8.7. The Board of Appeals shall permanently revoke all certifications issued by the Office of Miners' Health, Safety and Training when the Board finds, by a preponderance of the evidence, that the person has violated Section 5.12. of this rule for the second time.8.8. On any procedural question not regulated by the rule, the pertinent provisions of the Administrative Procedures Act found in W. Va. Code §29A-5-1et seq. shall apply.8.9. Any person adversely affected by a final order or decision issued by the Board of Appeals is entitled to judicial review thereof pursuant to W. Va. Code §29A-5-4.8.10. A failed drug or alcohol test is a test in which the certified person or safety-sensitive person has tested positive for a substance listed in Section 5.4. consistent with the standards and procedures provided in 49 CFR Part 40. Where a substance listed under Section 5.4. is not specifically tested for under 49 CFR Part 40, a positive test for such a substance shall be determined by the SAMHSA certified laboratory consistent with all applicable standards and procedures provided for in 49 CFR Part 40.