Workplace examinations: Clarification or confusion?

Without an announcement, the Mine Safety & Health Administration (MSHA) added to its website in late July and early August additional guidance on its controversial workplace examination rule.

The rule, now final, technically went into effect on June 2, but MSHA told the industry that it will not actively enforce the rule until Oct. 1, as long as the mine is making progress toward compliance with the rule’s new requirements.

There are a number of provisions in the standard that are vague and leave room for interpretation. In April, MSHA posted on its website guidance on the standard in the form of frequently asked questions. Many of the FAQs only restate what the rule says, which does not help operators understand what is required and does not promote consistency between inspectors in enforcing the standard. Reading between the lines, here are some thoughts on what MSHA is currently saying.

Is task training required?

The new standard says nothing about requiring task training for miners who will be conducting workplace examinations. However, even before the rule became final, some inspectors were issuing citations under the task training standard in Part 46 alleging that workplace examiners lacked required task training to be considered a competent person to do exams.

In its July 31 addition to the FAQs, MSHA again maintains that the definition of “competent person” to do exams has not changed with the new standard. A competent person is someone with the required experience and ability to perform an exam. MSHA goes on to declare, “task training on the task of conducting examinations would be an appropriate part of that.”

This dodges the crux of the issue. The question is not whether task training is appropriate. It is whether task training is required. Although training is a means to provide for competency to do examinations and it is not a violation to give Part 46 task training on workplace exams, the Part 46 task training requirement was never intended to mandate such training.

Are workplace examiners agents of the operator?

Another very important issue is whether an hourly miner becomes an agent of the operator, and therefore subject to potential 110(c) individual penalty liability, based simply on doing a workplace examination. Although the agency has said clearly in other documentation related to the rulemaking that this is not the intent of the standard, the FAQ issued on July 31 is less clear. It simply states that this “depends on the totality of their responsibilities and authorities at the mine” and the fact that the examination record includes the examiner’s name “does not add to or subtract from the examiner’s substantive examination responsibilities.”

Any suggestion by MSHA that doing a workplace exam renders someone an agent of the operator should be challenged.

Securing workplace examination records

MSHA has previously informed operators that the workplace exam standard permits use of electronic records of exams as long as they are “secured in a computer system that is not susceptible to alteration.” In a new FAQ, MSHA adds that workplace exam records, whether maintained in electronic or paper form, must be “tamper-proof” and “any authorized change or addition to a complete record should be indicated so it is clear what the change was.”

Other than stating that such records must be kept in a manner that prevents unauthorized access, there is no guidance on how a record in hard-copy form can be tamper-proof or how the indication of an authorized change is to be made.

Standard Clarifications

The agency’s FAQs do provide some clarifications on the finer points of the rule that may be helpful to operators: The examiner’s full name must be on the examination record. Initials are not sufficient; someone other than the examiner may record the date of the corrective action, as long as the person doing so has knowledge that the corrective action was completed on that date; to record the date of the corrective action, it is sufficient to staple, insert or link a closed work order to the examination record, if the closed work order clearly identifies the condition that was corrected and the date of the correction.

It is not necessary to record the corrective action date on every examination record that contains a record of the associated adverse condition. The corrective action date is only required on the first exam record.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.