We recently reported that 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. See our previous blog post.
Most employers are aware that the Occupational Safety and Health Administration can issue monetary penalties for health and safety violations occurring in the workplace. Many employers also know that in particular circumstances, OSHA can issue criminal sanctions. However, what employers may not know is that OSHA has also been referring workplace safety violations to state district attorney offices in fatality cases. A district attorney then reviews the case to determine if a company owner should be individually charged with manslaughter or other state criminal violations.
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.