by brian hendrix

Coal mining is an essential industry, so miners are working during this global pandemic. Weeks ago, the mining industry identified and then implemented a wide range of measures to protect miners from COVID-19. No law or regulation compelled the industry to act. It didn’t wait for a new rule from the Mine Safety and Health Administration (MSHA) or for MSHA’s guidance. Instead, it took the Center for Disease Control’s (CDC) recommendations and applied them to the mining environment. As a result, there is now a long list of standard industry practices aimed at protecting miners from COVID-19 while at work. From the outset, the list included personal protective equipment like N95 respirators and face shields. 

Why? The CDC didn’t and largely still doesn’t recommend the use of respiratory protection devices (RPD) to protect against COVID-19. The CDC’s position on masks and respirators was and remains that people who are not sick “do not need to wear a face mask unless you are caring for someone who is sick (and they are not able to wear a face mask).” That message tracks with what other public health experts have been saying.        

However, the message about the value of masks appears to be changing. On March 20, The Lancet, a well-respected British medical journal, published a comment explaining that “[a]s evidence suggests COVID-19 could be transmitted before symptom onset, community transmission might be reduced if everyone, including people who have been infected but are asymptomatic and contagious, wear face masks … It is time for governments and public health agencies to make rational recommendations on appropriate face mask use to complement their recommendations on other preventive measures, such as hand hygiene[.]”

Not long after the above comment appeared in The Lancet, the CDC updated its guidance on the use of masks. Outside of the health care industry, the CDC still does not recommend the use of “surgical masks or N-95 respirators.” Rather, the CDC is simply recommending the use of “cloth face coverings in public settings where other social distancing measures are difficult
to maintain (e.g., grocery stores and pharmacies) especially in areas of significant community-based transmission.”

For its part, MSHA is “abiding by the President’s Coronavirus Guidelines for America, which are based on the CDC’s Interim Guidance for Risk Assessment and Public Health Management of Persons with Potential Coronavirus Disease 2019.”

Neither the CDC or MSHA recommend respiratory protection devices by miners for protection against COVID-19, and MSHA doesn’t require the use of RPDs for that purpose. So, why are mine operators providing miners with respiratory protection devices to protect against COVID-19? The simple answer is that, right now, the occupational hazard to miners — potential exposure to COVID-19 — cannot be eliminated. Engineering and administrative controls will only go so far. That leaves PPE. PPE does work. It is not perfect. It is far from 100% effective. However, it may prevent some transmission or acquisition of COVID-19. That’s been obvious since the start. It’s really that simple.

Social distancing — staying at least 6 feet from other people — is and should be the primary goal in public and in all workplaces. In its updated guidance on masks, the CDC emphasized “that maintaining 6-ft social distancing remains important to slowing the spread of the virus.”  That said, some miners must work or travel within 6 ft of one another. To protect miners in those situations, mine operators are providing PPE like N95s and face shields, and some miners are wearing cloth masks.

Again, this is all perfectly reasonable, and it is consistent with CDC and MSHA guidance. MSHA doesn’t require masks or respirators to protect against COVID-19, but PPE has been on the industry’s list of best practices for mining during a pandemic from the very beginning, and that makes sense.

Of course, masks and respirators of all sorts are in very short supply. The Occupational Safety and Health Administration (OSHA) has provided some guidance to employers on this issue. MSHA has not. While miners may work or travel within 6 ft of one another for short periods or for specific, necessary tasks, they shouldn’t be in close contact with anyone who is symptomatic. According to the CDC, the risk under those circumstances is low.

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