MSHA demands for company files

By and |  September 27, 2013

The United States Court of Appeals for the Seventh Circuit held in Big Ridge v. Federal Mine Safety and Health Review Commission that Congress gave MSHA powerful tools to protect miners, and that those tools include demands to inspect documents.

As part of planned audits of accident, injury and illness records at 39 mines, MSHA had demanded that the mines open their employee workers’ compensation and medical records for inspection. When certain mine operators refused, MSHA issued citations and civil penalties of $4,000 per day for each day the records were withheld.

Judicial review

The Federal Mine Safety and Health Review Commission upheld MSHA’s actions, and the case proceeded to the U.S. Court of Appeals. Agreeing with the commission, the court rejected the operators’ arguments that MSHA was exceeding its authority and depriving them of due process under the Constitution.

The court stated: “We agree with the [commission] that MSHA acted within its statutory and constitutional authority both in demanding information that would permit MSHA to verify the accuracy of mine operators’ injury reports and in issuing citations and monetary penalties when mine operators refused to comply.”

Citing a history of deaths and injuries in mines, the court said the Federal Mine Safety Act gave MSHA “broad authority.” The court noted the act authorizes MSHA to inspect and investigate for several purposes, including “obtaining, utilizing and disseminating information related to health and safety conditions, the causes of accidents, and the causes of diseases and physical impairments … and determining whether there is compliance with the mandatory health or safety standards or with any citation, order or decision.”

The court cited language in the Federal Mine Safety and Health Act that “every operator of a coal or other mine shall establish and maintain such records, make such reports and provide such information, as the Secretary [MSHA] … may reasonably require from time to time to enable him to perform his functions.” The court concluded that MSHA can require operators to produce employee records “beyond those required to be maintained,” in order for MSHA to verify what individual operators are reporting.

The court held that demands for records are a valid exercise of authority by MSHA, and emphasized that MSHA’s injury and illness reporting regulations specifically state this: “Upon request by MSHA, an operator shall allow MSHA to inspect and copy information related to an accident, injury or illness which MSHA considers … relevant and necessary to a determination of compliance with the reporting requirements.”

The court rejected arguments from individual miners who joined in the case that their rights of privacy were being violated by MSHA’s demands for access to their medical records. The court stated that MSHA is a public health agency and, as such, is entitled to such information.

The court also rejected arguments referring to state laws saying that the “Mine Act preempts any conflicting state law; therefore no state law confidentiality requirement may limit MSHA’s Mine Act authority to demand records.”

The decision’s impact

The decision does not establish that MSHA may demand any company record at any time. It does not deprive companies of all privacy related to business records, but it does indicate that when it comes to medical records, MSHA is entitled to operator compliance with reasonable requests for documents that MSHA deems necessary to determine compliance with mandates for reporting accidents, injuries and illnesses.

In other words, according to the court, MSHA is not confined to accepting operator reports at face value. MSHA is instead entitled to see the records lying behind what the company has reported to it.

The accident, injury and reporting regulations are unique in important respects. While there are other records required by the act (i.e., workplace examinations, training records, records of unresolved mobile equipment defects) that must be produced to prove compliance, there is no other regulation that specifically articulates a requirement for an operator to “allow MSHA to inspect and copy information.”

This court of appeals decision does not resolve all issues for all circumstances – such as whether MSHA can demand non-mandated maintenance records – but operators can expect MSHA to make broader demands in other instances.

In every case, however, the key determinant of the propriety and enforceability of the demand will most likely be the reasonableness of the request under the circumstances existing at the time MSHA makes a records request.

Take note
MSHA is not confined to accepting operator reports at face value. It is also entitled to see company records that have been withheld.

Legal editor Michael T. Heenan is an attorney at Ogletree, Deakins, Nash, Smoak & Stewart, one of the nation’s largest labor and safety law firms. He can be reached at michael.heenan@odnss.com.

 

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