MSHA COVID-19 Update

Fennemore Client Alert

MSHA COVID-19 Update

On March 10, 2021, the Mine Safety and Health Administration (“MSHA”) announced during a stakeholder conference call guidance on mitigating and preventing the spread of COVID-19 in coal, metal, and nonmetal mines. The specific guidance document can be found at Protecting Miners (msha.gov).

As expected, MSHA has followed the lead taken by the Occupational Safety and Health Administration (“OSHA”) in formulating guidance for the protection of workers. In fact, MSHA’s guidance basically mirrors the OSHA guidance published in January 2021.

Importantly, MSHA strongly encourages all mining operators to implement a COVID-19 Prevention Program at each mine. According to MSHA, an effective COVID-19 Prevention Program includes the following essential components:

• Conducting a hazard assessment of the mine site;
• Identifying a combination of measures that limit the spread of COVID-19 in mine settings;
• Adopting measures to ensure that miners who are infected or potentially infected are separated and sent home from the mine; and
• Implementing protections from retaliation for miners who raise COVID-19-related concerns.

Moreover, and just like the previously published OSHA guidance, MSHA recommends the following elements of a COVID-19 Prevention Program:

1.   Identify a mine coordinator;
2.   Identify where and how miners might be exposed to COVID-19 at work;
3.   Identify measures that will limit the spread of COVID-19;
4.   Consider protections for miners at higher risk for severe illness through supportive policies and practices;
5.   Educate and train miners on your COVID-19 policies and procedures using accessible formats and in a language they understand;
6.   Instruct miners who are infected or potentially infected to stay home and isolate or quarantine;
7.   Minimize negative impacts of quarantine and isolation on miners;
8.   Isolate miners who show symptoms at work;
9.   Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the mine setting;
10.   Provide guidance on screening and testing;
11.   Record and report COVID-19 infections and deaths;
12.   Implement protections from retaliation and an anonymous process for miners to voice concerns about COVID-19-related hazards;
13.   To the extent possible, consider making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees;
14.   Treat vaccinated miners the same as those who are not vaccinated;
15.   Other applicable MSHA standards:

• Sanitation requirements
  • 30 C.F.R §56.20003(a); 30 C.F.R. §57.20003(a); 30 C.F.R. §56.20008(b); 30 C.F.R. §57.20008(b); 30 C.F.R. §71.402; and 30 C.F.R. §75.1712-3
• Training requirements
  • 30 C.F.R. §46.1-12, 30 C.F.R. §48.3; 30 C.F.R. §48.11; 30 C.F.R. §48.23; 30 C.F.R. §48.31
• Workplace examinations
  • 30 C.F.R. §56.18002; 30 C.F.R. §57.18002; 30 C.F.R. §77.1713; 30 C.F.R. §75.360; 30 C.F.R. §75.361; 30 C.F.R. §75.362; 30 C.F.R. §75.364
• Safeguards
  • 30 U.S.C. §874(b); 30 C.F.R. §75.1403
• Personal Protective Equipment
  • 30 C.F.R. §56.15006; 30 C.F.R. §57.15006; 30 C.F.R. §72.701

During the stakeholder call Jeannette Galanis, the Acting Assistant Secretary of Labor for MSHA, stated she believed the guidance suggestions are flexible for every mining operation and were based on CDC guidelines and previous guidance from OSHA. Moreover, she stressed the importance of the four components referenced above.

Thereafter, Tim Watkins, Administrator for Mine Safety and Health Enforcement, and Emily Hargrove, Associate Administrator of Mine Safety and Health Enforcement, responded to specific stakeholder questions. First, Hargrove noted this is only guidance and it does not create any new mandatory safety or health standards or legal obligations on operators. Next, MSHA clarified it will not need to review or approve an operator’s COVID-19 Prevention Program. MSHA also stated an operator can create a new stand-alone program or use existing plans with applicable modifications.

A significant portion of the call did deal with reporting COVID-19 illnesses on MSHA Form 7000-1. MSHA reiterated its desire to have operators follow CDC and local guidelines for reporting confirmed cases of COVID-19. Pat Silvey, Deputy Assistant Secretary for Operations, also commented that if a confirmed case meets the Part 50 reporting criteria then an operator must use MSHA Form 7000-1 and report the illness.

Finally, MSHA indicated that, as of the stakeholder call, there were no plans to issue an Emergency Temporary Standard (“ETS”) related to COVID-19 but agency leaders are meeting often to discuss whether an ETS is necessary. Assistant Secretary Galanis did state she hopes to have decision made on whether an ETS will be issued in the next couple of weeks – appearing to signal that MSHA is waiting on OSHA to issues its own ETS.

If you have any MSHA or OSHA related question, please feel free to reach out to your Fennemore attorney for assistance.