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.
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.