By: Nicholas W. Scala

The Mine Safety & Health Administration’s (“MSHA”) long-awaited proposed rule for Lowering Miners’ Exposure to Respirable Crystalline Silica and Improving Respiratory Protection has finally been published. MSHA released an early copy of the proposed rule recently on June 30^th , but the official version was published on July 13^th, on the Federal Register.   

Industry stakeholders have heard of MSHA’s plans for a new rule regulating Respirable Crystalline Silica (“RCS”) exposure in the mining industry for more than a decade, and across three presidential administrations if not longer. What MSHA published today is unsurprisingly similar to what stakeholders expected in 2016 when momentum was building for MSHA to adopt the Occupational Safety & Health Administration’s (“OSHA”) new (at that time) RCS standard, although there are some notable differences. Here are some key takeaways from the proposed rule:  Continue reading →

By: Nicholas W. Scala & Ashley Mitchell 

Adhering to what is now an annual requirement since the passage of the Inflation Adjustment Act in 2016, on January 13th the Mine Safety & Health Administration (MSHA) published a Final Rule updating the penalties used when assessing fines for citations and orders for the coming year. The increased penalties will determine assessments for mine production operators and independent contractors for all citations and orders assessed after January 15th. This annual update to MSHA’s penalty authority is tied to national inflation metrics, meaning when there is significant inflation in the economy, the penalty increase is greater. This year the penalty increase is slightly above 7% from 2022. 

For the most basic citations like 104(a) Citations, the increase is minimal. The statutory minimum penalty for regularly assessed penalties increases from $148 to $159. The increase becomes 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 regularly assessed penalties under 30 C.F.R. Section 100.3 is now $85,580 up from $79,428 in 2022.

Other increases of note include:

• Minimum Penalty for 104(d)(1) Citation/Order
  • An increase from $2,648 to $2,853
• Minimum Penalty for 104(d)(2) Order
  • An increase from $5,293 to $5,703
• Minimum Penalty for Failure to Notify MSHA of an Accident within 15 Minutes
  • An increase from $6,620 to $7,133 (the maximum follows Section 100.3 max listed above)
• Maximum Daily Penalty for Failing to Abate MSHA Citation (104(b) Order)
  • An increase from $8,605 to $9,271
• Maximum Penalty for Flagrant Violations under Section 110(b)(2)
  • An increase from $291,234 to $313,790

Annually, 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 from now forward in 2023. 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 the implementation of the Inflation Adjustment Act and its Catch-up Provisions by the Department of Labor)

By Conn Maciel Carey LLP’s COVID-19 Task Force

After its normal release of opinions this morning that did not include a decision about whether to stay OSHA’s vaccinate-or-test ETS, this afternoon, at approximately 2:30 PM, the United States Supreme Court issued a per curiam decision reinstituting a stay of OSHA’s ETS.  Here is a link to the opinion of the Court.

A per curiam decisions is a court opinion issued in the name of the Court rather than specific judges, but it is certainly not an indication that the decision was unanimous or non-controversial, and in this instance, we know it was not that.  There was also a concurrence by Justice Gorsuch (joined by Justices Thomas and Alito), and a joint dissent by Justices Breyer, Sotomayor, and Kagan.

At first blush, it appears that the majority of the Court is saying that without a more explicit delegation of authority from Congress, OSHA can only regulate hazards that are fairly unique to the workplace, which could have broader implications for OSHA’s regulatory reach than just this COVID-19 ETS (see Heat Illness):

“Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Under this theory, the majority opinion indicates Continue reading →

By Conn Maciel Carey’s COVID-19 Task Force

We apologize for interrupting what we hoped be a quiet, pre-holiday weekend for everyone, but we have very important and time sensitive news to share about the status of OSHA’s Vaccination, Testing, and Face Coverings Emergency Temporary Standard (ETS).  It was a very busy Friday night for everyone in the OSHA world.  In a remarkable turn of events, at 6:50 PM yesterday evening (December 17th), the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccination ETS that had been issued by the Fifth Circuit in November.

The Department of Labor and OSHA then immediately issued a statement that OSHA was moving forward with implementation and enforcement of the ETS, but also provided some enforcement relief for companies able to demonstrate good faith efforts to comply.  Then, within an hour of the Sixth Circuit decision being released, numerous parties filed an emergency application and motion with the US Supreme Court requesting the Supreme Court reissue a stay of the ETS.  And then, finally, shortly after midnight (approximately 1 AM last night), South Carolina along with 26 other State Attorneys General and a host of private entities also filed an emergency application for a stay.  What a night.

We briefly summarize the Sixth Circuit’s decision below and explain the lay of the land as it stands at this moment, what might occur next and, most importantly, what this means for employers across the nation.  Bottom line is that events are moving fast, but as we said a few weeks ago, do not put a fork in the ETS, and continue to prepare to come into compliance with it.  It is alive and well, at least until we hear from the Supreme Court.

Sixth Circuit Decision 

In a 2-1 opinion written by Obama-appointee Judge Jane Stranch and, notably, joined by Bush appointee Judge Julia Gibbons, the Sixth Circuit rescinded the nationwide stay of OSHA’s ETS that had been issued by the Fifth Circuit first an administrative stay on November 6th and then as a TRO on November 12th. The three-judge panel that heard the case consisted of one Obama appointee, one Bush (W.) appointee, and one Trump appointee.  Judge Gibbons (the Bush appointee) joined Judge Stranch, but she also wrote a separate concurring opinion.  Trump-appointee Judge Joan Larsen, who had purportedly been on a Trump’s short-list of potential nominees to the Supreme Court, dissented.

In a nutshell, Continue reading →

By Conn Maciel Carey’s COVID-19 Task Force

On Saturday, November 6th, a three-judge panel of the US Court of Appeals for the Fifth Circuit issued a Temporary Restraining Order (TRO) staying the effect of OSHA’s vaccination, testing, and face coverings emergency temporary standard (ETS) that it had promulgated just the day before.  The entirety of the court’s explanation for the stay Order was this:

“Because the petitions give cause to believe there are grave statutory
and constitutional issues with the Mandate, the Mandate is hereby STAYED
pending further action by this court.”

The suit challenging OSHA’s new vaccination, testing, and face coverings ETS was initiated on behalf of a group of private businesses and religious organizations, as well as several states, including Texas, Louisiana, South Carolina, Utah and Mississippi. The petitioners argued that OSHA overstepped its legal authority in issuing an emergency standard to address COVID-19 in US workplaces at this point in the pandemic. The petitioners assert that an emergency stay is necessary because these employers will face workforce shortages if unvaccinated employees quit their jobs in lieu of receiving a COVID-19 vaccination, and the ETSforces them to expend resources to develop and implement written compliance and reporting procedures beyond what the law authorizes under the circumstances.

Specifically, their objections to the OSHA ETS include: Continue reading →

By Conn Maciel Carey LLP’s COVID-19 Task Force

At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation.  The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5^th.  The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text.  The regulatory text begins on PDF page 473.  Also here is a Fact Sheet about the ETS issued simultaneously by the White House.

We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.

Conn Maciel Carey’s COVID-19 Task Force will be conducting a webinar about the ETS on Wednesday, November 10^th at 1:00 PM ET.  Here is a link to register for that program.

In the meantime, below is a detailed summary of the rule:

What is the stated purpose of the regulation?

The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”

Who is covered?

As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment.

Continue reading →