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The coronavirus, MSHA compliance and things you may have overlooked

By |  July 16, 2020
Photo: Nick Scala

Scala

Four months have passed since aggregate producers began making business adjustments due to the coronavirus (COVID-19).

Many producers adapted quickly, and regular procedures that were once foreign to the industry’s work are now commonplace. But questions continue to swirl around compliance as it relates to the Mine Safety & Health Administration (MSHA).

To that end, the Ohio Aggregates & Industrial Minerals Association hosted a July 14 webinar to clear the air on some of the confusion. Conn Maciel Carey’s Nick Scala served as the featured speaker.

Offering answers

Scala, the chair of the national MSHA workplace safety practice at Conn Maciel Carey, addressed a number of lingering questions for producers who are unclear about certain responsibilities they have with MSHA.

While the agency did launch a coronavirus resources webpage with some guidance early into the pandemic, Scala says MSHA’s initial response, in some instances, offered few specifics.

According to Scala, the agency’s vague response got the attention of Sen. Joe Manchin (D-West Virginia), who introduced the COVID-19 Mine Worker Protection Act in May. The bill would require MSHA to issue an emergency temporary standard based on guidance from the Centers for Disease Control & Prevention (CDC), the National Institute for Occupational Safety & Health and the Occupational Safety & Health Administration (OSHA).

“[The bill] would give some kind of citable and enforceable standard for workplace safety,” Scala says.

Since being introduced two months ago, the COVID-19 Mine Worker Protection Act continues to sit in the U.S. Senate. More recently, MSHA produced pamphlets offering some details about the coronavirus in the mining industry. The information contained within the pamphlets advises mine operators and employees to adhere to CDC guidelines, Scala says.

MSHA is also asking – but not requiring – producers to notify them of positive coronavirus cases.

“They’re asking it because they want to know if there’s going to be any outbreak in the mining industry,” says Scala, adding that MSHA is not currently aware of any coronavirus clusters in mine workplaces. “They want to know which operations have slowed so they don’t put their inspectors in that environment.”

Enforcement

As Scala describes, there has not been a “rash of enforcement” since the coronavirus outbreak by MSHA or OSHA. But Conn Maciel Carey is exploring how enforcement related to the virus might evolve.

MSHA consciously limited interactions with producers early into the pandemic. The agency is getting back to a more regular schedule, though, so producers are now more likely to see agency officials pay them visits.

When inspectors do visit, Scala says MSHA could zero in on citing areas such as failure to notify of operation status (56/57.1000), workplace examinations for hazards (56/57.18002), PPE and clothing hazard for irritants (56/57.15006) and failures to complete training – either task or new miner training.

“You need to make sure any new miners have their training,” Scala says. “You have to try to make them work with the use of PPE. [This includes] masks, a fixed barrier in your training room or limiting the amount of persons in the training room. But you need to ensure they have the requisite mining or new task training.”

Producers should also be on their toes if they have failed to update their HazCom program and if new chemicals are on site for cleaning.

“We might think [cleaning] is relatively straightforward,” Scala says, “but think about those cases we heard about with Monsanto and Roundup. It was a rather normal product that someone used extensively in their work, and the proper precautions may not have been taken. That may have been due to a lack of training.”

Along this same line, producers should consider how they’re storing new chemicals used for cleaning worksites.

Employee and visitor screenings

If employers prefer to handle temperature checks, Conn Maciel Carey’s Nick Scala advises them to take employee and visitor temperatures before they step foot out of vehicles upon arrival. Photo: Wojciech Kozielczyk/iStock / Getty Images Plus/Getty Images

If employers prefer to handle temperature checks, Conn Maciel Carey’s Nick Scala advises them to take employee and visitor temperatures before they step foot out of vehicles upon arrival. Photo: Wojciech Kozielczyk/iStock / Getty Images Plus/Getty Images

Producers undoubtedly have a lot of new things to consider these days. Health screenings are yet another example.

“You don’t have to necessarily take everyone’s temperature,” Scala says. “In Ohio, you are required to at least have your employees do a self-assessment on whether or not they are symptomatic.”

If producers do want to conduct temperature checks themselves, Scala encourages them to seriously consider how they’re going about the process.

“If you’re doing it with your own workforce, do they have the right PPE,” he says. “Where are you taking it?”

If employers prefer to handle temperature checks, Scala advises them to take employee and visitor temperatures before they step foot out of vehicles upon arrival.

“It’s a good option because if someone is found to have a temperature that is high, then they haven’t even gotten out of the vehicle,” he says.

Producers should be mindful, too, of how they’re documenting temperature readings. Records must be retained for one year under the Americans with Disabilities Act, Scala says.

“If you are documenting it, you don’t want to record actual temperatures or symptoms,” he says. “Just ‘yes’ or ‘no’ or ‘above’ or ‘below.’ If you put too much detail into that, you could be creating a medical record.”

Producers must make a number of other considerations when screening employees and visitors, as well.

“Think about what tools you are using,” Scala says. “Are you using a thermal camera? Those are expensive and a big investment, but it’s something to consider. Also, you have to keep in mind the employment law aspects of doing health screenings. You have to do it in a nondiscriminatory manner. [You] have to determine whether that’s compensable and have protocols in place for employees who refuse to do testing.

“Just like a person who refuses to wear a mask, we have to have a plan in place for that situation,” Scala adds.

Parting thoughts

While the guidelines Scala discussed are intended for aggregate producers and others who fall under MSHA’s purview, Scala argues that producers should expect MSHA officials to follow certain procedures when coming onto their sites.

“When MSHA is on site, they should be doing their best to social distance,” Scala says.

If aggregate operations have mask policies in place, those, too, should be followed.

“I hope that’s what you are finding during your interactions with the agency,” Scala says.

Kevin Yanik

About the Author:

Kevin Yanik is the editor-in-chief of Pit & Quarry magazine. Yanik can be reached at 216-706-3724 or kyanik@northcoastmedia.net.

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