Brian Hendrix
According to a recent working paper published by the National Bureau of Economic Research, “[n]inety one percent of [COVID-19 related] stories by U.S. major media outlets are negative in tone.” The paper is titled Why Is All COVID-19 News Bad News? That’s a good question, but you won’t find the answers here. Instead, I’ll be bucking the trend by covering some good COVID-19 related news relevant to the mining industry. I’ll also be praising the Mine Safety and Health Administration (MSHA).
First, and most importantly, the measures taken by the mining industry — including mine operators, miners, MSHA and other stakeholders — to mitigate the risks of infection have been very effective. The industry’s track record to date clearly demonstrates that fact. Several vaccines are now available, and the vaccinated population is growing every day. West Virginia has outperformed many other states on that front.
Second, MSHA hasn’t issued an Emergency Temporary Standard (ETS) on COVID-19. Instead, in early March, MSHA released a new guidance to help miners and operators identify the risks of exposure and select and implement appropriate control measures to mitigate those risks. MSHA’s guidance is consistent with the Centers for Disease Control (CDC). According to MSHA’s guidance, an effective COVID-19 prevention plan identifies a mine coordinator who will be responsible for COVID-19 issues on the operator’s behalf; identifies where and how miners might be exposed to COVID-19 at work; identifies measures that will limit the spread of COVID-19; considers protections for miners at higher risk for severe illness through supportive policies and practices; provides for education and training of miners on COVID-19 policies and procedures; instructs miners who are infected or potentially infected to stay home or isolate or quarantine; minimizes negative impacts of quarantine and isolation of miners; provides for the isolation of miners who show symptoms at work; provides for enhanced cleaning and disinfection when people with suspected or confirmed COVID-19 have been in the workplace; provides guidance on screening and testing; ensures that COVID-19 infections and deaths that are work-related are properly recorded/reported; implements protections from retaliation and establishes an anonymous process for miners to voice COVID-19-related hazards; makes a COVID-19 vaccine or vaccination series available at no cost to eligible employees; and treats vaccinated workers the same as those who are not vaccinated.
MSHA’s guidance is advisory. However, MSHA will enforce existing health and safety laws and standards at mines that do not implement appropriate measures to address COVID-19, for example: sanitation requirements, 30 CFR §§ 71.402 and 75.1712–3; training requirements, 30 CFR §§ 48.11, 48.23 and 48.31; workplace examinations, 30 CFR §§ 77.1713, 75.360, 75.361, 75.362 and 75.364; and safeguards, 30 U.S.C. § 874(b)and 30 CFR § 75.1403.
During a stakeholder call on March 10, Jeannette Galanis, the new deputy assistant secretary for policy at MSHA, acknowledged that many mine operators already have COVID-19 policies, plans and rules in place. No doubt, that fact, along with mine industry’s track record during the pandemic, has informed MSHA’s approach to COVID-19.
To date, MSHA’s approach to the pandemic has been smart and measured, despite the fact that considerable political pressure has been applied with the aim of forcing MSHA to issue an ETS. Last summer, the United Mine Workers of America, among others, unsuccessfully sued MSHA to force MSHA to issue an ETS. Legislation was introduced in the last Congress that would have required MSHA to immediately issue an ETS. That legislation went nowhere.
Now, with the 117th Congress in session, Congress will reconsider that legislation. The COVID-19 Mine Worker Protection Act has been reintroduced in the House and Senate. It is backed by Sen. Joe Manchin (D-WV) and Rep. Matt Cartwright (D-PA), among others. More significantly, President Joe Biden issued an executive order shortly after taking office that directed MSHA to “consider whether any emergency temporary standards on COVID-19 applicable to coal and metal or non-metal mines are necessary, and if such standards are determined to be necessary and consistent with applicable law, issue them as soon as practicable.”
All of this political pressure hasn’t caused MSHA to ignore the facts, act rashly and issue an ETS, and MSHA deserves praise for that. Congress authorized MSHA to issue an ETS when “miners are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful, or to other hazards,” and an ETS is “necessary to protect miners from such danger.” Thankfully, that is not the situation we are faced with today. While MSHA has made it clear that an ETS is not off the table, I am hopeful that MSHA will continue to be guided by the facts, not the politics.
Brian Hendrix is a partner with Husch Blackwell. He can be reached at brian.hendrix@huschblackwell.com.
