A few legal considerations on MSHA’s COVID-19 guidance

Nearly one year into the pandemic, the Mine Safety & Health Administration (MSHA) issued its first comprehensive guidance addressing COVID-19 protections for mine sites.  

The guidance provides what MSHA characterizes as “recommendations,” as well as information on existing mandatory safety and health standards that MSHA considers to be applicable to COVID-19 hazards. The agency states that the guidance is not meant to create new legal obligations, but MSHA emphasizes that operators are responsible for taking action to prevent the spread of COVID “as part of their obligation to provide a safe and healthful mine.”

As of March 15, it was not clear whether MSHA will issue an Emergency Temporary Standard mandating additional protections from COVID. In the meantime, operators should be familiar with the latest guidance, implement its recommendations where feasible, and keep an eye out for future updates from MSHA.

Key points

1. Record COVID protective measures taken. MSHA’s guidelines recommend that the mine operator perform a thorough assessment to identify potential COVID-related hazards and measures to address them. It is always a good practice to conduct such assessments for any type of hazard. This is particularly true where new or complex hazards are concerned.

Inevitably, the assessment process involves memorializing in a written document a description of the hazards that were found. What we do not always do, however, is to take the time to record what was done to address those hazards – or, even better, record this on the same document as the hazard assessment. This would be time well spent, though. 

2. Refresh the assessment and monitor implementation of protective measures. This is not a one-and-done process. Periodic reevaluation of the hazards and protective measures is important to ensure new, unaddressed hazards did not arise and to monitor continued effectiveness and implementation of the protections identified. Reporting of potential COVID exposures, incidents of actual illness or other indications of increased risk of transmission would also necessitate such follow-up to ensure the mine is still using the right controls to protect miners.

MSHA may consider workplace examination citations where hazards are not appropriately identified or addressed. Inspectors may also allege a violation where certain protective measures identified in other MSHA standards are not being used. Regular monitoring and follow-up are key to show that the mine is staying on top of the situation.

3. Protect miners from retaliation. MSHA suggests that miners and miners’ representatives be included in the hazard assessment process, as they may be in the best position to identify possible exposure risks. This may be particularly helpful with regard to certain tasks that could raise exposure concerns that only someone familiar with that job would know. 

Including miners in the assessment process might also improve their willingness to carry out the actions they need to do to protect themselves and others, and to comply with the mine’s requirements that incidents of suspected or known COVID are reported to the operator.

It must be remembered, however, that any safety or health concern that a miner raises could be the basis for a discrimination claim that a miner may later bring under Section 105(c) of the Federal Mine Safety & Health Act alleging that discipline or some other employment action was retaliatory. Miners may also try to claim that their rights to raise safety issues with the company or MSHA were interfered with in some way. 

4. Reporting COVID-19 illnesses. MSHA’s guidelines clearly state that operators are only required to file 7000-1 illness reports with the agency for COVID-19 if the illness meets all the requirements for other mine-related illnesses that are specified in 30 C.F.R. Part 50. This includes the key requirement that the COVID-19 illness be occupational in nature. If it cannot be determined that the virus was contracted at work, then it does not have to be reported to MSHA.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com

Featured photo: P&Q Staff