MSHA Posts Guidance for Operations During COVID-19

By: Nicholas W. Scala

Since the outbreak of 2019 Novel Coronavirus – now called “COVID-19” began in the United States, state and the federal government departments and agencies started posting guidance, best practices, and requirements for the continued operations of businesses. Until now, MSHA has remained relatively silent on the matter, with little other than a short posting granting some relief on training deadlines for operators in a Department of Labor resources page. That is until last week, when MSHA published its Response to COVID-19.

The contents of MSHA’s responses are rather minimal, especially when compared to its sister agency OSHA, which has published in depth materials on several occasions, including OSHA’s Guidance on Preparing Workplaces for COVID-19.COVID

MSHA’s Response to COVID-19 begins by recommending operators adhere to Centers for Disease Control (CDC) guidelines, including recommendations that operators enforce social distancing, clean and disinfect surfaces, encourage the proper washing of hands, and have employees stays home if they are sick. Practices that most, if not all companies nationwide have hopefully been implementing for some time already.

As for MSHA specific action, the agency unsurprisingly reaffirmed that it will continue to conduct mandatory inspections along with serious accident and injury investigations and/or hazard complaint investigations. Specifically it mentions that it will investigate complaints which detail an Imminent Danger or “serious in nature” hazards – both terms which grant MSHA significant deference to to decide when, or when not, to perform an investigation. Continue reading

What Do State and Local Stay-At-Home/Shelter-In-Place Orders Mean For Employers?

By Conn Maciel Carey’s COVID-19 Task Force

COVIDGovernors across the nation have signed various “stay-at-home” or “shelter-in-place” orders in an increased effort to slow the spread of COVID-19.  Many cities and counties have also signed such orders as well, including in states with no statewide order in place.  These orders vary in their scope in the restricted activities and affected industries but they typically address: (1) the continued operations of critical businesses; (2) restrictions on non-essential businesses; (3) the activities individuals may continue to perform; and (4) other limitations on gatherings.

Spotlight: California

On March 19, 2020, California Governor Gavin Newsom signed an emergency order requiring all individuals living in California “stay home or at their places of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.”  Californians may continue working for such critical infrastructure sectors and any other industries the governor designates as critical.  The emergency order cites to federal guidance on the federal critical infrastructure sectors, which identifies the 16 critical infrastructure sectors including critical manufacturing, food and agriculture, transportation, energy, healthcare and emergency services. Continue reading

March Update on How Employers Can Respond to COVID-19 with FAQs

By:  Kara M. Maciel and Beeta B. Lashkari

COVID

 

Since publishing our previous post last month, there have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.”  Notably, during the week of February 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) reported community spread of the virus that causes COVID-19 in California, Oregon, and Washington.  Community spread in Washington resulted in the first death in the U.S. from COVID-19, as well as the first reported case of COVID-19 in a health care worker, and the first potential outbreak in a long-term care facility.

Recent Developments and Federal Guidance

  • CDC has published an Interim Guidance for Businesses and Employers, cautioning employers to use the guidance to determine the risk of the Coronavirus, and not to use race or country of origin to make a determination. The guidance covers recommended strategies for employers to use, including: (1) actively encouraging sick employees to stay home; (2) separating sick employees; (3) emphasizing staying home when sick, respiratory etiquette and hand hygiene by all employees; (4) performing routine environmental cleaning; and (5) advising employees before traveling to consult CDC’s Traveler’s Health Notices and other CDC guidance.  Additionally, the guidance states that if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (“ADA”).

Continue reading

MSHA 2019 in Review and 2020 Forecast – [Webinar Recording]

On February 11,  2020, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented the first webinar event in the 2020 MSHA Webinar Series which covered Our Annual MSHA Update: MSHA 2019 in Review and 2020 Forecast.

2020 webinars 1

As we move into 2020, the last year of the Trump Administration’s first term, a new MSHA is taking form. The Agency has undergone, and continues to undergo, significant changes with its personnel, structure, and priorities. In this webinar, we examined MSHA’s 2019 with respect to enforcement, rulemaking, and the One MSHA “blurring” of the Coal and Metal/Nonmetal divisions. We also explored the potential areas of emphasis for the upcoming year and outline several items mine operators and independent contractors should monitor during 2020.

During this webinar, participants learned about: Continue reading

How Employers Can Respond to the 2019 Novel Coronavirus Outbreak

From Conn Maciel Carey’s Labor & Employment Practice Blog, the Employer Defense Report

By Kara M. Maciel and Beeta B. Lashkari

The 2019 Novel Coronavirus (“2019-nCoV” or “coronavirus”) is a respiratory illness that, with its spread to the United States, is raising important issues for employers.  This guide explains the outbreak, the legal implications of it, and how employers should be responding now to employees who might have the virus, are caring for affected family members, or are otherwise concerned about their health in the workplace.

The Coronavirus Outbreak

First detected in Wuhan, Hubei Province, China, 2019-nCoV is a respiratory virus reportedly linked to a large outdoor seafood and animal market, suggesting animal-to-person spread.  However, a growing number of patients reportedly have not had exposure to animal markets, indicating person-to-person spread is occurring.  At this time, it is unclear how easily the virus is spreading between people.  Symptoms of coronavirus include fever, cough, difficulty breathing, runny nose, headache, sore throat, and the general feeling of being unwell.  The incubation period is approximately 14 days, during which time an individual may see no symptoms but may still be contagious. The Centers for Disease Control and Prevention (“CDC”) reports that an ongoing investigation to determine more about this outbreak is underway, that the situation is rapidly evolving, and that more information will be provided as it becomes available.

As of January 30, 2020, there have been approximately 8,100 confirmed cases of 2019-nCoV in many countries, including in the United States.  On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization (“WHO”) declared the outbreak a “public health emergency of international concern.”  On January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency for the United States to aid the country’s healthcare community in responding to 2019-nCoV.  Additionally, on the same day, the President of the United States signed a presidential “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus.”

Legal Implications for Employers

With the presence of coronavirus in the United States, employers must be vigilant in complying with the various labor and employment laws implicated by the virus. Continue reading

MSHA Releases Final Rule for Penalty Increase in 2020

By: Nicholas W. Scala

Adhering to what is now an annual requirement since passage of the 2016 Inflation Adjustment Act, on January 15th the Mine Safety and Health Administration (MSHA) published a Final Rule updating the penalties to be used for the assessment of citations and orders in 2020. The increased penalties will determine assessments for mine production operators and independent contractors for all citations and orders assessed after January 15th. 2020 inflation 2

For the most basic citations, the increase is minimal, the statutory minimum penalty for regularly assessed penalties increases from  $135 to $137. But, the 1.764% inflation increase is more noticeable when citations and orders are classified more seriously and therefore creep further up MSHA’s regular assessment penalty conversion chart. For example, the statutory maximum for penalties assessed under 30 C.F.R. Section 100.3 is now $73,901, up from $72,620 in 2019.

Other increases of note include:

  • Minimum Penalty for 104(d)(1) Citation/Order
    • Increase from $2,421 to $2,464
  • Minimum Penalty for 104(d)(2) Order
    • Increase from $4,840 to $4,925
  • Minimum Penalty for Failure to Notify MSHA of an Accident within 15 Minutes
    • Increase from $6,052 to $6,159
  • Maximum Daily Penalty for Failing to Abate MSHA Citation (104(b) Order)
    • Increase from $7,867 to $ 8,006
  • Maximum Penalty for Flagrant Violations under Section 110(b)(2)
    • Increase from $266,275 to $270,972

Since passage of the 2016 Inflation Adjustment Act, MSHA has until January 15th of each calendar year to increase the penalty assessment limits. The new penalties will become evident as mine operators begin to receive Proposed Assessments and Statements of Accounts from MSHA following the issuance of citations or orders in 2020. The increase in penalties in no way impacts mine operators option to contest any assessed citation or order, and as penalties continue to increase MSHA may find more operators contesting to ease the financial burden.

(For more information on the history of these increases see our 2016 blog post on implementation of the Inflation Adjustment Act and its Catch-up Provisions by the Department of Labor)

MSHA Issues Direct Rule to Include Electronic Detonators in Regulations

By: Nicholas W. Scala and Daniel Deacon

On January 14, 2020, the Mine Safety and Health Administration published a Direct Final Rule revising certain safety standards regarding explosive materials at Metal and Nonmetal (M/NM) mines – specifically relating to the use of electronic detonators.  The direct rule will become effective on March 16, 2020, “unless substantive adverse comments* are received or postmarked by midnight Eastern Standard Time on February 13, 2020.  If adverse comment is received, MSHA will publish a timely withdrawal of the rule in the Federal Register.”

A concurrent Proposed Rule was published in the Federal Register to speed up notice and comment rulemaking should the agency decide to withdraw the direct rule. However, all interested parties who wish to comment should comment at this time “because MSHA does not anticipate initiating an additional comment period.

Background of Rule

As part of Assistant Secretary Zatezalo’s continued push to embrace technological advancements in the mining industry, MSHA seeks to update an aging regulation to include reference to modern systems. MSHA for the most part has utilized the same definition for detonators since 1979 – with the exception of a minor modification in 1991.Detonators direct rule The standards have defined “detonators to mean any device containing a detonating charge that is used to initiate an explosive such as electric blasting caps and non-electrical instantaneous or delay blasting caps.” MSHA anticipated that the existing definition would continue to cover new developments in detonator technology but has not found that to be the case given advancements in computer and micro-processing technologies – which have led to the development of “electronic” detonators.

Historically, MSHA’s standards have included only two types of detonators in the definition: non-electric (includes devices such as detonating cords, shock-tube or safety fuse detonators, or a combination of these), or electric (uses electrical currents to initiate detonation).

The addition of electronic detonators (designed to use electronic components to transmit a firing signal with validated commands and secure communications to each detonator, and a detonator cannot be initiated by other means) will serve to update the regulations to include what is at this point the is the technology in use by the majority of operations.

On September 28, 2004, MSHA issued Program Information Bulletin (PIB) No. P04-20, Electronic Detonators and Requirements for Shunting and Circuit Testing. The PIB discussed how to rectify MSHA requirements on shunting and circuit testing with the advanced electronic detonators. During its review of electronic detonators, MSHA found that the systems contained internal safeguards for shunting and circuit testing and that these systems satisfy MSHA regulation as long as the manufacturer instructions are followed.

Proposed Revisions

In 2018, MSHA requested comments from industry stakeholders on which existing regulation(s) should be repealed, replaced, or modified without reducing miners’ safety and health. The changes proposed in this direct rule were largely the result of comments from the Institute of Makers of Explosives (IME), which requested that MSHA update its regulations to recognize the significant developments in safety and sophistication offered by electronic detonators. Continue reading

Announcing Conn Maciel Carey’s 2020 MSHA Webinar Series

2020 webinar series logo.png

2020 brings about MSHA’s third year under the guidance of Assistant Secretary Zatezalo. Since being confirmed in 2017, the Assistant Secretary has made significant strides in fundamentally changing MSHA. The traditionally separated Coal and Metal/Nonmetal divisions have merged under a single administrator, and MSHA instituted a “blurring” of Coal and Metal/nonmetal inspectors and litigation resources. Additionally, MSHA continues to engage in rulemaking efforts regarding Powered Haulage – which could lead to a proposed rule in 2020 – and Respirable Quartz (Silica). These items, coupled with MSHA’s continued practice of exceeding the minimum two or four visits per year at mine sites and the roll-out of new enforcement initiatives, add up to an MSHA that is quietly evolving under the Trump Administration. As we enter an election year, it is especially important to track MSHA’s activity as new rules and/or fundamental changes to agency structure may further alter the enforcement and compliance landscape for mine operators and independent contractors at mine sites.

Conn Maciel Carey’s complimentary 2020 MSHA Webinar Series, hosted by the firm’s national MSHA Practice Group, is designed to give you the tools to prepare your mining operations for forthcoming initiatives, rulemaking and enforcement for 2020 and beyond.

To register for an individual webinar, click the registration link in the program descriptions below. To register for the entire 2020 series, click here to send an email request, and we will get you registered. If you miss any of the programs this year or those hosted during prior years, here is a link to our webinar archive.

MSHA 2019 in Review and 2020 Forecast

Tuesday, February 11, 2020

MSHA and FMSHRC Mid-Year Update

Tuesday, July 21, 2020

Preparing for and Managing MSHA Inspections

Thursday, March 26, 2020

Attorney-Client Privileged Audits and Investigations

Tuesday, September 22, 2020

MSHA Part 50 and Training Recordkeeping Requirements

Tuesday, May 26, 2020

Legal Responsibilities and Liabilities with Contractors at a Mine

Thursday, December 12, 2019

SEE BELOW FOR DESCRIPTIONS OF THE WEBINARS AND REGISTRATION LINKS Continue reading

MSHA Begins Enforcing New Provisions of Workplace Exam Rule for M/NM Mines

By: Nicholas W. Scala

Happy New Year (now you better be in compliance)! For Metal/Nonmetal production operators and independent contractors, welcoming 2020 means the deadline to comply with MSHA’s newest iteration of the Workplace Exam Rule for M/NM mines is here.

Effective January 1, 2020, MSHA’s 90-day enforcement hold on the updated rule expired, and inspectors will now be issuing citations if a production operator or independent contractor is found in violation of the fully implemented 2017 Final Rule.

The process of altering the workplace exam rule from the 2018 Final Rule began in earnest this past June 2019, when the U.S. District Court for the District of Columbia found in favor a labor union challenge to the regulation. The Court found MSHA violated the “No Less Protection” clause of the Mine Act and parts of the Administrative Procedure Act with respect to its rulemaking process. Workplace Exam MSHA Screenshot.JPGAs discussed in our June 2019 blog, the Court ruled, and subsequently ordered after MSHA sought review of the decision, MSHA must make the following changes to the 2018 Final Rule, effectively reinstating the first final version of the Workplace Exam rule from January 2017.

In reinstating the 2017 Rule, the Court of Appeals put into effect two requirements operators previously did not have to comply with:

  1. All workplace exams must be done BEFORE miners enter a working area; and
  2. All adverse conditions observed during a workplace exam must be recorded, even if corrected/abated prior to miners entering the working area.

Continue reading

Requirements and Limitations of MSHA Citations and Orders – [Webinar Recording]

On December 12, 2019, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented the sixth and final webinar in the 2019 MSHA Webinar Series discussing Requirements and Limitations of MSHA Citations and Orders.December 2019 Snip

While most operators know how to respond to an inspector issuing 104(A) citations, what happens when the inspector issues a 104(B) or 107(A) or 104(D)? Each citation and order issued by MSHA either requires or prohibits some action from an operator, whether the production operator or independent contractor. Sometimes, a single order mandates action or inaction by both parties.

This webinar reviewed MSHA’s available citations and orders, with an emphasis on the appropriate reaction by operators to prevent further enforcement and safeguard contest rights.

During this webinar, participants learned about:

  • Available citations and orders that can be issued by MSHA inspectors;

  • How to identify what action should be taken, or what action is prohibited, depending on the citation/order issued; and

  • How to preserve an operator’s contest rights while complying with MSHA issuances.

Here is a link to a recording of the webinar with audio, and a copy of the slides.  Thank you to all of those who joined the 2019 MSHA Webinar Series. The 2020 MSHA Webinar Series Schedule will be posted soon!