Aggregates Manager

March 2014

Aggregates Manager Digital Magazine

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AGGREGATES MANAGER March 2014 34 Rock Do operators have to take the blame for intoxicated employees? THE INFLUENCE by Amanda E. Ferguson Amanda E. Ferguson is an attorney in Jackson Kelly PLLC's Denver office, where she practices with the Occupational Safety and Health Practice Group. She can be reached at 303-390-0178 or via email at Under O n Jan. 1, 2014, Colorado became the first state to fully decriminalize mari- juana. Washington will do the same later this year, and 20 other states have already legalized medical marijuana. As the spot- light hovers on marijuana use, many have expected clarification or at least comment from the Mine Safety and Health Administration (MSHA) on the subject. As yet, none has been forthcoming. In 2008, MSHA announced a proposed rule that would have established Part 66, containing alcohol- and drug-free mine regulations applicable to both metal/non-metal and coal mines. The rule would have required operators to establish drug and alcohol programs, including a written policy and employee education, and would have required miners testing positive on drug and alcohol tests to complete treatment before returning to duty. How- ever, the agency never promulgated the final rule. Now that marijuana or medical marijuana may be legal in your state, what does it mean when an employee under the influence commits a violation? As operators know, the Federal Mine Safety and Health Act of 1977 (Mine Act) is a strict liability statute. As an operator, you are liable for violations committed by your employees, whether you knew what they were up to or not. In the only Federal Mine Safety and Health Review Commission (Commission) decision to consider the issue, the Commission imposed strict liability. In Mar-Land Industrial Contractor, Inc., 14 FMSHRC 754 (May 1992), a contractor's employee at a cement plant performing structural steel work fell 52 feet and died. Investigators later determined that the worker failed to properly secure his belt lines. A toxicological analysis also showed evidence of cocaine in his system. MSHA cited general contractor Mar-Land under the fall protection standard, 30 C.F.R. § 56.15005. At the hearing, Mar-Land raised the defense that it should not be liable for the violation because the indi- vidual was under the influence of cocaine. The ALJ rejected that argument and upheld the violation. The Commission found that Mar-Land was strictly liable for the individual's failure to wear his belt properly. They held that "[t]he fact that belts are not worn properly is a violation under [§ 56.150005] for which the operator is liable irre- spective of employee misconduct." The Commis- sion's holding in Mar-Land is limited to the stan- dard at issue, but its reasoning is easily applicable to most other MSHA regulations. Arguing against strict liability for an impaired miner's violation may be a losing battle, but the violation's negligence finding is still up for debate. Ordinarily, an hourly miner's negligence may not be imputed to the operator for penalty assessment purposes. But operators cannot rely on positive drug tests to excuse them of negligence altogether. Surprisingly, the Commission and its judges have been reluctant to equate a positive drug test with impairment. In several cases, the court refused to find that an employee's positive drug test meant the employee was actually intoxicated because the operators failed to introduce evidence putting the test results into context. In one case, "the only evidence in the record regarding the side effects of the drug was a document printed off an internet website." Jim Walter Res. Inc., 28 FMSHRC 983, 993 (December 2006). Similarly, the judge in

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