Doran & Lopez: What to expect from MSHA in the new normal

We are now about three months into adjusting to changing conditions brought about by the coronavirus (COVID-19) situation.

Operators and the Mine Safety & Health Administration (MSHA) are becoming acclimated to new policies and practices, which continue to evolve in response to updated guidance from MSHA and other federal agencies. In particular, mining operations, like most businesses, are tailoring their policies to address the need for a sustainable mode of operating while managing risk for the long term.

MSHA’s response in providing COVID-19 guidance to operators has been mixed. This is good and bad. MSHA’s less detailed guidance has given operators more flexibility to develop policies, mindful of what is required or recommended by the Centers for Disease Control & Prevention (CDC), the Occupational Safety & Health Administration (OSHA) and local governments, yet specific to what works best for their operations – rather than a one-size-fits-all approach.

It also may have helped reduce the incidence of overreaching by inspectors seeking to extend enforcement beyond what MSHA actually regulates in its standards.

To the extent that MSHA’s virus-related guidance has been problematic, this has been largely in the nature of the agency’s initial slowness to provide answers on compliance challenges that were arising in the immediate aftermath of local shelter-at-home and social distancing mandates. These challenges have run the gamut, from how to complete mandated training, to how to count employees working from home on MSHA quarterly reports, to complying with other certification deadlines in the regulations.

To be fair, the agency did eventually respond to some of the questions that arose, but this could have been handled more proactively from the start. MSHA’s latest guidance can be found on the COVID-19 page on its website, as well as links to guidance issued by OSHA, CDC and other agencies.

MSHA also was – and to some extent remains – behind the curve in adjusting inspection and investigation procedures to protect agency personnel and operators. The Department of Labor’s Inspector General has opened an investigation to examine this and presumably will be making recommendations for improvements.

All of this leads us to think about what we should be prepared to manage in terms of dealings with MSHA as we move into the long-term recovery under what likely will be the new normal for some time to come.

PPE and social distancing

Mine operators are already familiar with wearing respiratory protection masks, eye protection, gloves and other forms of personal protective equipment (PPE) that now also protects against the virus. MSHA inspectors are, as well.

We also have all learned a new term: social distancing.

Certainly, the new focus on PPE and social distancing measures will continue for the foreseeable future. While social distancing is not always feasible in every task at a mine – any more than it is in a dentist’s office – mine operators have been focused on implementing new ways of completing the work to incorporate social distancing measures where that can be done. This will need to continue to be part of the job safety analysis of performing any new work activity.

In MSHA inspections and investigations, operators do not have the legal authority to require MSHA personnel to wear PPE or follow the operation’s social distancing and other virus-protective requirements, such as temperature monitoring or self-disclosure of symptoms. Even so, operators can and should request this of inspectors. If an inspector unreasonably refuses to comply, the operator should contact the local field or district office.

Contact tracing

A key component to the wider reopening of business at large likely will be the institution of contact tracing.

This already is being done on an informal basis with MSHA in terms of operators informing the field office that the mine has learned that an employee who may have had contact with the inspector has tested positive, or is suspected of having the virus.

What the industry needs to insist occurs is the flip side of this: MSHA must be sure to inform affected operators whenever an inspector tests positive.

Virus-related protected safety activity

Any suggestion or complaint by a miner regarding protection from the virus, that is reasonable and made in good faith, could be considered by MSHA to be safety activity protected by Section 105(c) of the Federal Mine Safety & Health Act. Given the particular circumstances involved, the same could be true regarding a miner’s refusal to work.

Operators should respond to all COVID-related complaints with the same care and attention that should be given to any safety or health complaint – acknowledge that you have heard the concern; do an appropriate investigation into the risk and identify and implement any appropriate protective measures; and let the miner know how this was addressed. Include the miner (and any other affected persons) in the process wherever possible. Be cautious about taking any action that could be interpreted as retaliation for or interference with protected activity.

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.