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At the end of July, the Mine Safety and Health Administration (“MSHA”) announced the issuance of a Program Policy Letter (“PPL”) to provide mine operators guidance regarding the existing requirement to provide escape ways or refuges at underground metal and nonmetal mines when miners must shelter in place.  The PPL is being issued for public comment prior to being final despite MSHA noting that the PPL is not to be considered rulemaking.  However, MSHA believes the PPL is necessary to address significant safety issues regarding the placement of a refuge in a location that provides miners access if they cannot escape.   

The majority of workplace shooting deaths could have been prevented if individuals had been present who possessed even the most basic trauma/stop-the-bleeding training and equipment. We provide links to approved providers and background on the Stop the Bleed movement.

Recently, the Federal Motor Carrier Safety Administration (“FMCSA”) unveiled plans to lower the minimum legal age required to operate commercial motor vehicles in interstate commerce. The FMCSA began the Under-21 Military Pilot Program and has requested public comment on another proposal to allow drivers ages 18-20 to operate commercial motor vehicles. Both these initiatives will address a dearth of drivers in today’s economy and comply with Section 5404 of the Fixing America’s Surface Transportation (FAST) Act.

Unanimous decisions from the Federal Mine Safety and Health Commission are rare, but on July 11, 2019, the Commission ruled 5-0 to reverse an Administrative Law Judge’s finding of a fall protection violation in Sims Crane because the ALJ improperly shifted the burden of proof. Vacating the decision before it, the Commission found that the ALJ focused upon Sims’s counterarguments without determining whether the Secretary proved his claims by a preponderance of the evidence. The Commission then held that the Secretary failed to establish that a danger of falling existed as a violation of section 56.15005 requires. It vacated the Secretary’s citation without remand.

Standard Operating Procedures (SOPS) have morphed from useful practical guidance to bewildering multi-page tomes which clash with the realty of how to do the job. More troubling, SOPs may be used as an excuse to not apply good judgment or hold employees responsible for safe performance. We'll discuss these challenges and basic adjustments.

When an inspector from the Occupational Safety and Health Administration (OSHA) shows up at your workplace, know this: everything—and we mean everything—that a manager or supervisor says at any point to the inspector will bind the company and may be used against the company to support a citation. 

Every presidential administration has its priorities, and President Trump’s is no different.  President Trump has put his stamp on the Occupational Safety and Health Administration (OSHA) by stalling, delaying, or modifying Obama Administration policies (think the anti-retaliation rule and the e-file accident report regulation). 

Excavations and trenches have become so commonplace on worksites that some employers and employees have developed a sense of complacency with some of the most basic requirements of excavation safety.  To counter this, the Occupational Safety and Health Administration (“OSHA”) initiated a National Emphasis Program (“NEP”) on Trenching and Excavation, on October 1, 2018, to increase OSHA’s education and enforcement efforts regarding trenching and excavation operations.  Under this NEP, OSHA Compliance Officers can inspect trenching operations whenever they observe an open trench or excavation, regardless of whether there is a violation. 

On June 11, 2019, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion vacating the Mine Safety and Health Administration’s (“MSHA”) 2018 rule (“2018 Amendment”) entitled, Examinations of Working Places in Metal and Nonmetal Mines, codified at 30 C.F.R. § 56/57.18002, see 83 Fed. Reg. 15,055 (Apr. 9, 2018).  In so doing, the D.C. Circuit ordered the reinstatement of MSHA’s January 23, 2017 version of the rule (“2017 Standard”), which revised the previously existing workplace examination standard at 30 C.F.R. § 56/57.18002.

Over the last couple of years, employee incentive programs have been under attack from the Department of Labor. However, OSHA and MSHA have undertaken their efforts against incentive programs in different ways.  In the preamble to the 2016 proposed amendments to 29 CFR § 1904.35, OSHA discussed how it could issue citations to employers based on workplace safety incentive programs should the program be found to discourage reporting of injuries. MSHA has been battling the issue through litigation with appeals still currently pending as explained more fully below. 

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