On March 10, 2021, the Mine Safety and Health Administration (“MSHA”) released additional – and more detailed – COVID-19 guidance. Issued under the Biden Administration, “Protecting Miners: MSHA Guidance on Mitigating and Preventing the Spread of COVID-19” is significantly more detailed than what was provided by MSHA in 2020. The enhanced guidance recommends mine operators and independent contractors working at mines take additional action to limit the spread of COVID-19 in the workplace. This is akin to what the Occupational Safety and Health Administration (“OSHA”) has recommended in its COVID-19 guidance for general industry workplaces.
Similar to the previous guidance issued by the agency, MSHA continues to rely heavily on best practices outlined by the Centers for Disease Control (“CDC”), however, unlike MSHA’s 2020 guidance, this time the agency lays out specific actions and policies it “recommends” operators undertake while highlighting several specific, existing MSHA regulations that can be applied to COVID-19 prevention for enforcement purposes.
Below, we take a look at some of the most impactful elements of the MSHA guidance, but for a complete review of the MSHA guidance, join us on Thursday, March 18th for the MSHA Defense Report 2021 Webinar – COVID-19 and MSHA: Best Practices and Compliance Strategies for Mine Operators.
COVID-19 Prevention Programs
For the first time, MSHA formally recommends that each mine develop and implement a COVID-19 Prevention Program. These programs, which have been recommended by OSHA and are required in multiple state-plan OSHA Emergency Temporary Standards (“ETS”), are expected to be the mine’s (or contractor’s) outline and collection of COVID-19 mitigation efforts. Our Conn Maciel Carey workplace safety team has been recommending employers have these plans in place, and assisting clients with the development of COVID-19 Exposure Control and Response Plans throughout the pandemic.
Now, those employers regulated by MSHA will be expected to have the plans in place. In instances where OSHA has come on site for COVID-19 complaints or investigations, most often the first document request to the employer is for the site’s COVID-19 Prevention Program, even though under federal OSHA – as with MSHA – it is not currently required by regulation.
MSHA recommends a miner’s COVID-19 Prevention Program and plan would at a minimum:
- Identify a coordinator for COVID-19 at the mine.
- Complete a hazard assessment to identify where miners might be exposed to COVID.
- Outline measures to help limit the spread, such as the hierarchy of controls (hazard removal, engineering controls, administrative controls, personal protection equipment (“PPE”), or other measures).
- Consider additional protections or accommodations for miners at higher risk of severe illness.
- Educate and train miners on COVID-19, along with the mine’s prevention program and policies.
- Isolate miners who show symptoms at the mine.
- Isolate and prohibit at the workplace those miners who are infected or potentially infected.
- Minimize negative impacts of quarantine and isolation on miners through remote work options (where available) and/or leave policies.
- Outline enhanced cleaning procedures throughout the mine, especially where infected or suspected/confirmed COVID-19 positive miners worked.
- Provide information to the workforce on screening and testing, including having miners perform pre-work self-assessments for COVID-19 symptoms.
- Record and/or report work-related COVID-19 illnesses and fatalities on MSHA 7000-1 form and in accordance with 30 CFR §50.
- Protect miners from retaliation for voicing COVID-19 related concerns or complaints.
Many operators around the country already have the policies listed above in place at their operations, however, the policies may not be compiled into a single program or formally recorded into a document. While MSHA indicated the recommended practices could be added to existing training plans or policies, it is advisable to create a separate program where all company and site policies are compiled and easy to locate, produce, and/or update as needed.
Recording and Reporting to MSHA
Thus far, MSHA has largely treated cases of COVID-19 in the workplace as not reportable or recordable unless there has been an outbreak at a mine site where exposure to the virus is nearly absolute. MSHA has requested that operators voluntarily inform the agency when COVID-19 positive cases occur at a mine site but not through a 7000-1 record.
In this guidance, MSHA specifically outlines the expectation that mine operators and independent contractors submit records of work-related COVID-19 illnesses or deaths to the agency when:
(1) the case is a confirmed case of COVID-19;
(2) the case is an occupational illness (as defined by 30 CFR 50.2(f)); and
(3) the case involves one or more relevant recording criteria (e.g., medical treatment, days away from work).
This guidance on the work-related determination is vague, however, during a March 10th stakeholder call MSHA officials confirmed that the determination of work-related will be left to the mine operator, as the operator works with any state/local health departments on contract tracing per state/local reporting requirements. Therefore, mine operators need to be aware of their local reporting requirements, and when analyzing whether a miner contracted or was exposed to COVID-19 in the workplace, maintain records of the rationale for determining work-relatedness or not. This approach is similar to OSHA guidance on reporting/recording from 2020. See Conn Maciel Carey OSHA Defense Report Blog post regarding COVID-19 OSHA Recordkeeping and Reporting.
MSHA claims they will not take a more active enforcement approach (at this time) on recordkeeping for COVID-19, but it appears this guidance is laying the groundwork for greater scrutiny from inspectors under 30 CFR §50. Also, MSHA still requests that operators voluntarily inform the agency of COVID-19 cases in the workplace, work-related or not. However, it is worth mentioning again, if a COVID-19 case is determined to be a work-related illness, filing a 7000-1 is mandatory.
Applicable MSHA Standards
While this guidance is not a mandatory standard and does not create a legal obligation, MSHA included regulations may apply to preventing or mitigating the spread of COVID-19 in the workplace and should be considered the most likely enforcement areas for MSHA regarding COVID-19 at mines until (or if) an MSHA issues an ETS.
- Sanitation requirements: 30 CFR 56.20003(a), 30 CFR 57.20003(a), 30 CFR 56.20008(b), 57.20008(b), 71.402 and 75.1712-3
- Training requirements: 30 CFR 46.1-12, 48.3, 48.11; 48.23; and 48.31
- Workplace examinations: 30 CFR 56.18002, 57.18002, 77.1713, 75.360, .361, .362, .364
- Safeguards: 30 U.S.C. 874(b) and 30 CFR 75.1403; • Personal Protective Equipment (PPE): 30 CFR 56.15006, 57.15006, and 72.701
The list provided by MSHA does not include many surprises, as the MSHA regulations that can be applied to infectious disease transmission is very limited. However, depending on the stance of the inspectors and supervisors involved, this guidance could very easily lead to more citations regarding COVID-19 in the workplace. The guidance also includes best practices to limit the spread of COVID, which include the wearing of face masks, utilizing social distancing, improving ventilation in underground operations and indoors areas, and the use of PPE where necessary or voluntarily.
Retaliation Protections for Miners
Whistleblower protection, or protection from retaliation, is mentioned in the guidance more than once as a component of a COVID-19 Prevention Program, and it was discussed often by MSHA officials during the stakeholder call. Specifically, protection for miners who may bring forth (to the company or to MSHA) complaints against a mine regarding COVID-19 exposure, infection, or control measure.
This also is not a surprise, as it was expected the Biden Administration would focus on whistleblower protection, however it should be a warning for mine operators that they must take all complaints from the workforce seriously. Act cautiously when responding to these complaints and never retaliate against a miner for bringing forth a complaint regarding unsafe working conditions. Mine operators and independent contractors should have a system for fielding and responding to employee concerns regarding COVID-19 in the workplace, and those employees tasked with these job duties should be trained to handle them appropriately without violation of miner’s rights under Section 105(c)(1) of the Mine Act.
MSHA, unlike OSHA, does not have a General Duty Clause catch-all regulation to cite mine operators for COVID-19 related hazards for which the agency does not have a specific standard, however, mine operators know that when MSHA wants to issue a citation for a workplace hazard, the inspectors usually find a way. To that end, mine operators should take this guidance from the agency seriously, as it is expected inspectors will be familiar with the guidance and make further inquiries into COVID-19 prevention and mitigation efforts at mines. This could also be the precursor to an Emergency Temporary Standard (ETS) from MSHA, which the agency stated on the March 10th stakeholder call. This guidance does not mean that MSHA has abandoned the idea of publishing an ETS in the future.
While MSHA states in the opening paragraph of the guidance, “This guidance contains recommendations, as well as descriptions of mandatory safety and health standards. It is not a standard or regulation, and it creates no new legal obligations,” operations should be prepared for inspectors to begin asking more questions about COVID-19 mitigation efforts and Prevention Programs during routine inspection, and more COVID-19 focused inspections.
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As a boutique law firm focused on Workplace Safety and Labor & Employment Law, Conn Maciel Carey has been working with our clients since the beginning of this crises to develop customized COVID-19 Exposure Control Plans. In most cases, we hold a series of conference calls with leadership, HR, safety, and operations after which we provide a customized exposure control plan that will help protect employees and customers, and to provide a line of defense against all of the regulatory and tort liability that is mounting every day. If you would like help developing such a plan, please contact any of the attorneys at Conn Maciel Carey.
For additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 FAQ Page for an extensive index of frequently asked questions with our answers about HR, employment law, and MSHA/OSHA regulatory related developments and guidance. Likewise, subscribe to our MSHA Defense Report, Employer Defense Report and OSHA Defense Report blogs for regular updates about the Labor and Employment Law or MSHA/OSHA implications of COVID-19 in the workplace. Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.