Since the start of the COVID-19 pandemic, most mine operators have been waiting for MSHA to release some health and safety guidance regarding the outbreak and how to safeguard the safety and health of their miners. After a protracted period of silence, MSHA recently provided some guidance: simply directing mine operators to the Occupational Safety and Health Administration’s (OSHA’s) Guidance on Preparing Workplaces for COVID-19, which outlines steps employers can take to help protect their workforce.
With fear of the COVID-19 coronavirus gripping the nation, many employers – including mine operators large and small – are trying to keep their workforce safe and their businesses running as smoothly as possible (and a comprehensive and updated FAQ on how to do so can be found here). But along with the steps you might take to ensure its business as usual, you might also need to implement a hazards communication protocol in order to stay on the right side of the law.
As the current administration continues with its purported deregulatory agenda, the Mine Safety and Health Administration (MSHA) is struggling for an identity. After years of some of the most stringent compliance activity ever seen from an enforcement agency, the mining industry is experiencing record low injury rates and a historically low number of fatalities. While there may be some disagreement between the cause and effect of such historically low numbers, there cannot be any question that this extreme level of government oversight came with a cost.
The federal agency overseeing mine safety and health has been undergoing a bit of a transformation over the past several years, and employers can expect to see the most significant change in a matter of weeks. The Mine Safety and Health Administration (MSHA) is caught up in the Winds of Change as it streamlines operations, and it will soon revamp its entire organizational structure. What do you need to know about the impending changes and how will it affect your operations?
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.
Section 105(c)(1) of the Federal Mine Safety and Health Act (“Mine Act”) provides “No person shall discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of any miner.” 30 U.S.C. § 815(c)(1). In Secretary on behalf of McGary et al. v. Marshall County Coal Co. et al., 38 FMSHRC 2006(Rev. Comm. Aug. 2016) & 40 FMSHRC 261 (Rev. Comm. March 2018), the CEO held a series of “Awareness Meetings” with the work force, specifically requesting that when employees filed anonymous hazard complaints to the Mine Safety and Health Administration (“MSHA”), they report those same conditions to the operator. Complaints were filed with MSHA after these meetings and a hearing was held in front of an Administrative Law Judge (“ALJ”) to determine whether these meetings interfered with miners’ rights.
The legal basis of interference is in Section 105(c)(1) of the Federal Mine Safety and Health Act (“Mine Act”) - “No person shall discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of any miner.” 30 U.S.C. §815(c)(1). The interference test has developed into a two-part evaluation of an operator’s reaction to protected activity or treatment of miners’ rights. The real question is whether MSHA must show if an operator’s actions were motivated by protected activity or were intended to interfere with miners’ rights to establish an interference claim.