[Webinar] MSHA and OSHA Jurisdiction: When, How, and Why to Challenge Your Regulator

On Tuesday, September 14, 2021 at 1 p.m. ET, join Nick Scala for a webinar regarding MSHA and OSHA Jurisdiction: When, How, and Why to Challenge Your Regulator.

CaptureThe line of demarcation between MSHA and OSHA jurisdiction is clear-cut and it is easy to determine which regulator has authority over your operations, right? While that is sometimes the case, where the MSHA/OSHA Interagency Agreement specifically outlines which agency has authority of which operation, there are most definitely gray areas. Whether looking at where the mining process ends and manufacturing beings, or what is the exact definition of mineral milling and how is it applied, there are frequently questions and concerns regarding MSHA/OSHA jurisdiction. However, frequently employers just accept the status quo or agency determination without question. This presentation will help employers ask the right questions regarding MSHA/OSHA jurisdiction at their facilities and determine whether or not challenging the agency in control is merited and worthwhile.

Participants in this webinar will learn the following:

Continue reading

Federal OSHA to Issue Another COVID-19 Emergency Temporary Standard Setting a “Soft” Vaccine-Mandate

By Conn Maciel Carey’s COVID-19 Taskforce

Yesterday, September 9th, President Biden issued new Executive Orders requiring federal contractors and healthcare employers to implement “hard” vaccine mandates, and directed federal OSHA to issue a new Emergency Temporary Standard that would require many employers to provide paid time for employees to get vaccinated and recover from the vaccine, and to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly COVID-19 testing.

The push now for a broader COVID-19 ETS applicable beyond just healthcare is a step for which we have been bracing for a while now.  In June, when OSHA issued its COVID-19 ETS that was limited only to the healthcare industry, the vast majority of employers dodged the bullet, but since the explosion of new cases because of the Delta variant, we began to see that bullet more as a boomerang, likely to come back around for the rest of industry.  Here are five signals we picked up that OSHA was likely to revisit its decision in June to limit its COVID-19 ETS to only healthcare employers:

    1. The rate of community transmission and COVID-19 deaths around the country has returned to the level we were experiencing in the Spring of this year when OSHA delivered to OMB a proposed ETS that was written to cover all industries.  To the extent the decline in cases and deaths was a major factor in OSHA’s decision to limit the ETS to just healthcare, that factor no longer cuts in favor of a healthcare-only rule.
    2. Between the time OSHA delivered the broad proposed ETS and the time it issued the narrow healthcare-only ETS, the CDC released groundbreaking guidance relaxing COVID-19 protocols for vaccinated individuals.  OSHA’s decision to limit the ETS to just healthcare only a month later had to be influenced by that seismic shift.  But since that time, in July, CDC backtracked on its guidance for vaccinated workers, causing OSHA to adjust its own guidance in that regard.
    3. Since issuing the ETS for healthcare, OSHA has been under pressure from national unions and worker advocacy groups to expand the ETS to all industries, both in the form of written comments during the ETS’s post-issuance comment period and a lawsuit filed by AFL-CIO challenging OSHA’s decision to limit the ETS to just healthcare.
    4. There has been a growing tension between the Biden Administration and certain Republican governors, particular DeSantis in Florida and Abbott in Texas, around mask and vaccine mandates.  The Biden Administration could resolve that tension by issuing a specific federal OSHA regulation setting requirements for masking and vaccinations, which would likely preempt conflicting state laws.
    5. The White House has changed its tune about strict COVID-19 protocols and vaccine mandates dramatically since the OSHA ETS was issued.  The Administration’s decision to limit the ETS to healthcare only was likely at least partially politically-motivated; i.e., a broad ETS was too unpopular due to the massive decline in COVID-19 cases and deaths.  However, we have started to see President Biden take politically risky moves around vaccinations; e.g., reinstituting mask recommendations for vaccinated individuals and setting a “soft” mandate for federal workers and contractors and encouraging industry to set similar mandates.  If the politics of aggressive COVID-19 requirements influenced OSHA’s decision to issue a narrow rule in June, it appears the Administration has changed its political calculation in the face of the spread of the Delta variant surge.

Those were the main signals we saw that kept us up at night worried OSHA would deliver to OMB a new or amended COVID-19 ETS that would apply to all industries.  But President Biden’s announcements yesterday sent the strongest signal yet that we will soon see further regulatory action from federal OSHA on the COVID-19 front.  A lot of questions remain, and we expect those to be answered in time as the new rules take effect, but we wanted to share with you what we know so far, as well as our preliminary thoughts/speculation about some of those questions.

What Happened Yesterday?

Let’s start with the President’s “Path Out of the Pandemic: POTUS COVID-19 Action Plan.” Continue reading

MSHA Publishes Proposed Rule on Safety Programs for Surface Mobile Equipment

By: Nicholas W. Scala 

Today, September 9, 2021, the Mine Safety & Health Administration (“MSHA”) published its proposed rule on Safety Programs for Surface Mobile Equipment. A rule, that if finalized, would become incorporated in 30 C.F.R. §§56, 57, and 77, for surface Metal/Nonmetal (“M/NM”) and coal mining, and surface areas as underground M/NM and coal mines. Importantly, in its proposed state, the rule specifically excludes belt conveyors, which MSHA historically groups with mobile equipment under its Powered Haulage category for enforcement and data collection.

While it isn’t a surprise the MSHA published the proposed rule, the agency has discussed the rulemaking on its quarterly stakeholder calls in 2021 and since early 2020, it is somewhat surprising that a Trump Administration rulemaking continued to move forward under the Biden Administration. Additionally, so, as MSHA still does not have an Assistant Secretary of Labor for MSHA confirmed, or even nominated.Mobile Equipment Safety Prgoram Snip

The rulemaking process for the Safety Programs for Surface Mobile Equipment began to gain momentum after MSHA issued a June 2018 request for information (“RFI”) from industry stakeholders. The RFI, entitled Safety Improvement Technologies for Mobile Equipment at Surface Mines, and for Belt Conveyors at Surface and Underground Mines, sought feedback regarding accident and injury reducing technologies that could be (or have been successfully) implemented in the mining industry. In addition to the RFI, MSHA also held six stakeholder meetings (and one webinar) to discuss the same. The RFI and MSHA’s efforts also aligned with MSHA initiation of a Powered Haulage Safety (and enforcement) Initiative, which continues to this day.

As a result of the RFI and stakeholder meeting process, MSHA determined to develop a rule focusing on mandating the implementation of operator created safety programs rather than the incorporation of new technologies, such as mandatory seat belt interlocks, proximity sensors or back-up cameras to name a few. MSHA determined that each operator would be best situated to determine the appropriate and feasible technology for its mine, but this decision also provides MSHA with a more open ended regulation that is not beholden to the technology of today 20-30 years from now.

The Proposed Rule

MSHA proposes three regulations to be created by the rulemaking, §56.23000 – 23004, §57.23000 – 23004, and §77.2100 – 2104. The three standards as proposed contain the same obligations. For review purposes, below is the proposed language of §56.23000 – 23004. Continue reading

Mid-Year MSHA Update and FMSHRC Significant Decision Review (Webinar Recording)

On August 19, 2021, Nicholas W. Scala presented a webinar regarding a Mid-Year MSHA Update and FMSHRC Significant Decision Review.

The first year in an administration is full of change and depending on the speed with which an MSHA Assistant Secretary is confirmed, by mid-year the agency can begin to take shape for the coming years. Therefore, maybe even more so than other years, it is imperative that we keep tabs on MSHA, and its evolving staff and priorities. This webinar will take a look at what has transpired at MSHA in 2021, including enforcement, new initiatives, and/or rulemaking. Additionally, it will review significant case decisions that have come down from the Federal Mine Safety and Health Review Commission (FMSHRC) and its Administrative Law Judges (ALJs) that will impact the mining industry.

Participants in this webinar learned the following: Continue reading

Announcing Conn Maciel Carey’s MSHA Webinar Library

Since 2017, Conn Maciel Carey LLP’s MSHA  Workplace Safety Practice Group has conducted regular webinars to give employers insight into critical developments about MSHA. We have compiled the recordings from those Annual MSHA Webinar Series and have created a comprehensive webinar library so you can easily navigate and find relevant MSHA regulatory programs.

Also, subscribe to our YouTube channel to access all of our past webinars and get an email notification when new recordings become available.  

Click the links in the schedule below for program descriptions for the rest of the 2021 MSHA Webinar Series and register today or send us an email to register for all future webinars.

Mid-Year MSHA Update and
FMSHRC Significant Case Review

Thursday, August 19th

Contesting MSHA Citations and Orders: Tips and Strategies when Challenging

Wednesday, October 27th

MSHA and OSHA Jurisdiction:
When, How, and Why to Challenge Your Regulator

Tuesday, September 14th

Recap of Year One of the Biden Administration

Tuesday, December 14th

Check out our new webinar libraries for Labor & Employment and OSHA.


[Webinar] Mid-Year MSHA Update and FMSHRC Significant Decision Review

On Thursday, August 19, 2021 at 1 p.m. ET, join Nicholas W. Scala for a webinar regarding a Mid-Year MSHA Update and FMSHRC Significant Decision Review.

The first year in an administration is full of change and depending on the speed with which an MSHA Assistant Secretary is confirmed, by mid-year the agency can begin to take shape for the coming years. Therefore, maybe even more so than other years, it is imperative that we keep tabs on MSHA, and its evolving staff and priorities. This webinar will take a look at what has transpired at MSHA in 2021, including enforcement, new initiatives, and/or rulemaking. Additionally, it will review significant case decisions that have come down from the Federal Mine Safety and Health Review Commission (FMSHRC) and its Administrative Law Judges (ALJs) that will impact the mining industry.

Participants in this webinar will learn the following: Continue reading

CDC Updates Mask Recommendations for Fully Vaccinated Individuals

By Conn Maciel Carey’s COVID-19 Task Force

We have an unfortunate update to share out of the CDC today.  Short story, do not throw away your “Masks Required” signs.

What Did the CDC Change About Mask Recommendations?

Earlier today (July 27th), the CDC updated its “Interim Public Health Recommendations for Fully Vaccinated People,” in which the CDC recommends:

  • fully vaccinated people wear masks in public indoor settings in areas where there is substantial or high transmission;
  • fully vaccinated people can choose to wear a mask regardless of the level of transmission, particularly if they are immunocompromised or at increased risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease or not fully vaccinated; and
  • fully vaccinated people who have a known exposure to a suspected or confirmed COVID-19 case be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

Although the guidance speaks in absolutes, we think that the general limitations that have applied to all prior mask mandates throughout the pandemic continue to inform this updated guidance; i.e., “public indoor settings” is intended to cover locations where there is the potential for exposure to another individual, and not where an employee is “alone in a room” or “alone in a vehicle.”

Is Your County Experiencing Substantial or High Levels of Transmission?

To determine whether your workplace is in a county experiencing substantial or high transmission of COVID-19, the CDC uses two different indicators, the higher of which prevails:

  1. total new cases per 100,000 persons over the past seven days; and
  2. positive test rate over the past seven days.

Continue reading

MSHA Announces Powered Haulage “Stand Down for Safety Day” with Enforcement Initiative & Rulemaking Ongoing

By: Nicholas W. Scala 

MSHA recently announced that today, Tuesday, July 20th, is national Stand Down for Safety Day focused on bringing greater recognition to the hazards associated with Powered Haulage on mine sites. As the impetuous for the safety day, MSHA cites nine fatal injuries this year, which it has attributed to powered haulage, and references 185 miners who have sustained injuries to date due to powered haulage, according to MSHA injury recordkeeping. See MSHA Press Release on Powered Haulage Safety. 

As part of the Stand Down for Safety Day, MSHA intends to send enforcement personnel out to mine sites with the specific purpose to “emphasize the need for adhering to best safety practices for powered haulage, vehicle rollovers, and miner training to reduce fatalities and injuries.” Construction,Earthworks,Excavator,Grader,Trucks,Construction,Industrial,Earthworks,Excavator,GraderMine operators should be prepared that MSHA will use this not only as an opportunity to educate the workforce, but also set the stage for its inspectors to closely examine operational compliance with MSHA’s powered haulage regulations for the purpose of issuing enforcement. The enforcement push may or may not happen when MSHA is on-site as part of the stand down, but this will be an area of increased enforcement by the agency. Industry stakeholders were told this much on MSHA’s most recent quarterly stakeholder call. 

The Stand Down for Safety Day further aligns with a hazard and enforcement area that has been a focus of MSHA for the past few years, continuing from the Trump to Biden Administration. Under Asst. Secretary Zatezalo, MSHA announced annual powered haulage safety and enforcement initiatives dating back to 2018. Additionally, under the Trump Administration, MSHA initiated rulemaking efforts for a new powered regulation targeting surface mines and surface areas of underground mines. 

The new rule, if finalized, would require Continue reading

Is Your Workplace Covered by Fed OSHA’s New COVID-19 Emergency Temporary Standard?

By Conn Maciel Carey’s COVID-19 Task Force

Nearly 16 months after the pandemic began, federal OSHA revealed its COVID-19 Emergency Temporary Standard (the ETS) that imposes a series of requirements on healthcare employers.  While OSHA’s issuance of an ETS comes as no surprise to many who have been tracking the agency since Pres. Biden’s inauguration, the fact that it applies only to the healthcare sector and not to all industries is not what we expected.  Looking back, the promulgation of an ETS applicable to all workplaces seemed a foregone conclusion when President Biden took office in January and issued an Executive Order that same day directing OSHA to update its COVID-19 guidance, adopt a COVID-19 National Emphasis Program, evaluate whether an ETS was necessary and, if so, issue the ETS on or before March 15, 2021.

On April 27, 2021, OSHA delivered to the White House Office of Management and Budget (OMB) an ETS, which, by all accounts, was a broad rule applicable to all industries, but because this was an emergency rulemaking, the proposed regulatory text was not available to the public.  In the weeks that followed, the Office of Information and Regulatory Affairs (OIRA), within OMB, hosted a series of meetings to hear from stakeholders regarding a proposed rule they had not seen.  On behalf of the Employers COVID-19 Prevention Coalition, Conn Maciel Carey organized and led two OIRA meetings at which we and our coalition members provided input and recommendations to OSHA and OMB.  As the meetings continued, the success of the vaccine rollout became clearer, with a corresponding drop in COVID-19 cases, hospitalizations, and deaths, and then came the Centers for Disease Control (“CDC”) game-changing guidance on May 13, 2021 relaxing protocols for vaccinated individuals.  All of this caused many to question whether an OSHA ETS was still necessary.  With conditions on the ground improving rapidly, we continued to help stakeholder schedule and participate in OIRA meetings to argue that a general industry ETS was no longer needed.

On June 10, 2011, after more than 50 OIRA meetings, a final ETS applicable only to the healthcare industry was sent to the Office of the Federal Register for publication.  The standard appears at 29 C.F.R. Section 1910.502, and will appear in the Federal Register within a couple of weeks.

Explaining the purpose of the ETS for Healthcare, U.S. Secretary of Labor Marty Walsh offered this statement: Continue reading

EEOC Updates COVID-19 Vaccination Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Last week, Conn Maciel Carey posted a blog article about How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status.  One of the observation in that article was that we were all on the edge of our seats waiting for the EEOC to issue promised guidance about employer incentives and mandates about the COVID-19 vaccination.  On Friday, the EEOC finally issued much-anticipated updated FAQs about the legal landscape of various employer vaccinations policies.

Here is a summary of the vaccine section of the guidance:

May employers ask employees about vaccination status under federal law?  See FAQs K9, K5, K15, K16, K18, K19

  • Yes – does not violate ADA or GINA.
  • However, employer should not ask “why” an employee is unvaccinated, as this could compel the employee to reveal disability information that is protected under the ADA and/or GINA.
  • Recommended practice: If employer requires documentation or other confirmation of vaccination, “notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”

Is vaccination information “confidential” under the ADA?  See FAQ K4

  • Yes, this includes documentation (i.e., the white vaccination card)  or “other confirmation” of vaccination, which we presume means any self-attestation form or email from the employee, as well as any record, matrix, spreadsheet, or checklist created by the employer after viewing employees’ vaccination cards or receiving a verbal confirmations from employees.
  • The records or information must be kept confidential and stored separately from employee personnel files.

How may employers encourage employees and family members to get vaccinated?  See FAQ K3 Continue reading