by brian hendrix

Mining did not stop for the global pandemic. Mine operators, miners and other stakeholders took immediate action to mitigate the risk to miners’ health posed by the coronavirus (COVID-19) and kept working. So far, those efforts have proven to be very effective. More than three months have passed and we have not seen or heard about outbreaks or hot spots in mines.

This is not what some people expected. In March, Cecil Roberts, president of the UMWA, told MSHA that “many miners” are “older and suffer from various underlying health conditions” that “will greatly exacerbate the severity of the symptoms related to COVID-19.” According to Roberts, “miners are one of the most vulnerable populations.” In April, Carlos Tarley, UMWA international secretary treasurer emeritus, told the Times West Virginian he did not know of “another occupation other than the medical field that’s more infectious than the coal mines.” Tarley believed that protecting miners was “impossible” because there was “no safe way to get … miners in and out.”

While some believe that, others claim it is possible to protect miners with news laws and regulations. The last several months prove that’s not the case. Nevertheless, on May 13, Sen. Joe Manchin (D-WV) introduced the COVID-19 Mine Worker Protection Act (COVID-19 bill). Six other senators, all from coal producing states, cosponsored the legislation, including Sen. Shelly Moore Capito (R-WV).

If enacted, the COVID-19 bill would require MSHA to issue an emergency temporary standard (ETS) to protect miners against COVID-19 within seven days, with a permanent one in two years. In this bill, the ETS must incorporate the “guidelines issued by the Centers for Disease Control and Prevention (CDC), the National Institute for Occupational Safety and Health (NIOSH), and the Occupational Safety and Health Administration (OSHA) that are designed to prevent the transmission of infectious agents in occupational settings.” The ETS also requires mine operators to provide personal protective equipment (PPE), ancillary medical supplies, and other applicable supplies to reduce and limit exposure  in mines. The ETS also requires recording and reporting of work-related COVID-19 infections and deaths.

The COVID-19 bill would also expressly bar operators from discriminating or retaliating against a miner for expressing a “good faith concern” about a workplace infectious disease hazard, reporting such concerns to MSHA or voluntary using PPE with a higher level of protection than PPE provided by the operator.

For a host of reasons, the COVID-19 bill is ill-advised, unnecessary and counterproductive. The industry’s response to the pandemic has been quite effective. What is there to even suggest the industry is not doing everything it can to protect miners?

If a mine operator fails to protect miners, MSHA is still on the job. MSHA inspectors are inspecting mines and investigating hazard complaints, discrimination complaints and accidents during the pandemic. MSHA’s enforcement authority is incredibly broad, and it’s plan approval authority is broader still. If an inspector believes an operator is putting miners at risk, they have tools available to force the operator to act.

As for retaliation, every miner already has a right to refuse to work in unhealthful conditions and to report unsafe or unhealthful conditions to MSHA. Those are statutory rights created by Congress in 1977, along with an enforcement process that protects miners from retaliation.

Practically speaking, MSHA is not capable of turning the reams of guidance from three other agencies into one uniform, mandatory standard, applicable to all mines that effectively addresses a very complex and uncertain hazard in just seven days. That would be a Herculean task for any agency. It would be the rulemaking equivalent of the three-minute mile. If MSHA managed to produce something in seven days, it would definitely not look like an effective rule.

The CDC, OSHA and NIOSH guidance is exactly that — guidance. For example, the CDC has said “[t]here is much more to learn about the transmissibility, severity, and other characteristics of COVID-19 and investigations are ongoing,” and it updates its guidance accordingly. Guidance is flexible and dynamic. An ETS would be fixed and strictly enforced.

Fortunately, the Senate is unlikely to take any real action on the COVID-19 bill. It could also find its way into a stimulus or recovery package, and a companion bill may be introduced in the House. It would find more support in that chamber, but likely not enough to go anywhere.  However, to paraphrase Yogi Berra, predictions are hard, especially about the future and particularly when it comes to politics.

Brian Hendrix is a partner with Husch Blackwell. He can be reached at brian.hendrix@huschblackwell.com.