Public Hearing Held on Workplace Drug/Alcohol Regulations

Hearing Will Resume on January 5, 2009

The New Mexico Environmental Improvement Board (EIB) held a public hearing at the Roundhouse in Santa Fe on December 1 on amendments to state Occupational Health and Safety Regulations requiring employers “to develop and implement a written policy prohibiting unlawful drug use and alcohol beverage by employees use in the place of employment.” After all testimony, the hearing officer stated that the “record will remain open” and that the hearing will resume on January 5, 2009.

Enforcing body would be the Occupational Health and Safety Bureau (NM OSHA). The rules would apply to both public and private work. Mark Harwell, chair of the AGC Safety and Health Committee; Ralph Eggleston, committee member; and Dennis Roberts, AGC staff, were present at the December 1st meeting.

AGC-NM Building Branch and representatives of the oil and gas, public utility, and restaurant industries, all testified on the issue, stating that the amendments are “well-intentioned”. It was pointed out that many companies already have such written programs and that illegal drug and alcohol prevention programs should be priorities for all businesses in New Mexico. Furthermore, such programs are baseline requirements for participation in many industry cooperative programs, including the Blue level of the AGC-NM OSHA CHASE Partnership.

As far as the logistics of enforcement are concerned, it was stated that a clearer definition is needed on “place of employment”---does it mean just the “workplace” or does it extend to other aspects of a person’s employment, such as business meetings, company picnics, or holiday parties? AGC also brought out the issue of “multi-employer jobsites” and where ultimate responsibility (and liability for citations and penalties) would fall —on individual employers, on the “controlling employer”, or both.

Prior to the hearing, the Bureau had made changes to the originally-crafted amendments following receipt of written comments from AGC and other stakeholders. These changes, which were seen by many as being positive, are as follows:

• “Reasonable Diligence”: In response to stakeholders’ concerns that continual, thorough scrutiny of several multi-employer jobsites over wide geographic areas would be difficult, if not impossible, the Bureau added the following language, “To determine whether an employer has violated this subsection (11.5.3 A. NMAC) , the department shall consider whether the employer knew, or with exercise of reasonable diligence, could have known of the presence of the prohibited unlawful drug or alcohol use.”
• “Employee Misconduct”: In response to some written comments that stated that NM OSHA should cite employees for such violations, the Bureau stated that it does not have authority to cite employees. Its purpose is to require employers to provide safe workplaces, free from recognized hazards. However, Bureau Chief Butch Tongate stated that “if during inspections, the OHSB inspector may consider employee misconduct as a mitigating factor in determining whether or not enforcement action will be taken.”
• Penalties: The Bureau also removed a section from the original draft which stated that “employers who violation…may be penalized in accordance with the maximum statutory penalty” and stated that it will use its “existing policy for determining penalty amounts.”

The new regulations (11.5.2, 11.5.3, and 11.5.4 NMAC) were directed by Gov. Richardson following a highly-publicized fatality on a highway project near Gallup in April. One person was killed when he fell from a steel beam on which he was walking. There was evidence of alcohol consumption by workers (with a foreman present) on the work site.

In addition to the issues that went before the EIB on December 1, the governor has also directed state agencies to pursue tougher measures to ensure drug and alcohol free workplaces through the regulatory process. These measures include changing state construction specifications to require contractors to:

• have random drug/alcohol testing programs for all employees;
• maintain safety ratings, as determined by OSHA, before being eligible to bid work;
• conduct quarterly checks on validity of employees’ driver’s licenses; and,
• have a hiring and termination policy with regard to DWI convictions and loss of driver’s licenses, especially as it pertains to foremen, safety officers, and supervisors.

Between December 1 and January 5, 2009, NM OSHA Bureau Chief Tongate will meet with stakeholders and develop clearer understanding of terms as well as logistics of enforcement. It will also be ascertained what the Governor’s position on these issues will be next year.

Posted December 4, 2008