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.

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.

Of importance for some operators and independent contractors, MSHA announced leniency regarding completion of certain types of miner training and certification which might require group and/or in-person training. MSHA is not lifting the requirement that mine operators (which includes independent contractors) complete the below listed training recertifications for this calendar year.

• Annual refresher training certification (30 CFR Part 46)
• Surface and underground annual refresher training certification (30 CFR Part 48)
• Certified person; sampling (30 CFR §§ 70/71/90.202)
• Certified person; maintenance and calibration (30 CFR §§ 70/71/90.203)

However, MSHA is granting employers extensions to complete training until the President’s Emergency Declaration is lifted. At that time, MSHA urges employers to coordinate with the appropriate district office to ensure the certifications are completed in a timely manner, and therefore avoid enforcement on missed deadlines. This will be especially helpful for the country’s more seasonal mining operations, whose annual refresher training is due to be completed in March and April.

It is important to note, MSHA expressly stated that these temporary stays on training deadlines DO NOT apply to new miner training. Any new miner beginning work for a production operator or independent contractors must receive the required training in accordance with Parts 46 or 48, whichever applies.

MSHA also encourages operators to notify the agency is there has been a change in the operational status of a mine, such has running at limited capacity or fewer shifts as this may impact MSHA’s allocation of inspector resources when coming on-site. If a mine is temporarily idled during COVID-19, operators should adhere to the normal notification procedures to inform MSHA when the facility shut down and will restart operations.

As employers around the country grapple with the employment law and workplace safety implications of the COVID-19, the Labor & Employment Law and Workplace Safety (OSHA/MSHA) attorneys at Conn Maciel Carey have been fielding countless questions and helping our clients and friends in industry manage this pandemic.

As this situation continues to evolve, we have created an extensive index of frequently asked questions about HR, employment, and OSHA related regulatory developments and guidance from federal agencies and the CDC.  Conn Maciel Carey’s COVID-19 Task Force will be updating our list of FAQs frequently,  but please reach out to us for the most up to date information.

We want to be a resource to your business, so please do not hesitate to reach out to us as we are in regular contact with MSHA, OSHA and the CDC to help answer questions about how best to keep our businesses thriving and our employees safe and healthy through this crisis.  Chances are good that whatever questions you are facing, we have heard and helped answer them already