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

MSHA Special Investigation Management: Handling §105(c) and §110 Investigations [Webinar Recordings]

On Wednesday, May 26th, Nick Scala presented a webinar regarding MSHA Special Investigation Management: Handling §105(c) and §110 Investigations.

CaptureIn any given year MSHA inspections are common and required. Depending on the operation, MSHA will be on-site at least two times per year for a surface mine, and at least four times per year at an underground operation. But what happens when MSHA’s presence on site is more targeted, whether to investigate complaints of discrimination or interference with a miner’s rights under the Mine Act, or to look into the alleged personal culpability of a member of mine management? In these circumstances, the individual managers who typically act as the operator’s representative can be caught off guard and even be the target of the investigations This presentation will explore the framework of these investigation, and strategies for managing the investigation while also protecting the rights and defenses of individuals and the company.

Participants in this webinar learned the following: Continue reading

[Webinar] MSHA Special Investigation Management: Handling §105(c) and §110 Investigations

On Wednesday, May 26th at 1:00 P.M. EST, join Nicholas W. Scala for a webinar regarding MSHA Special Investigation Management: Handling §105(c) and §110 Investigations.

CaptureIn any given year MSHA inspections are common and required. Depending on the operation, MSHA will be on-site at least two times per year for a surface mine, and at least 4 times per year at an underground operation. But what happens when MSHA’s presence on site is more targeted, whether to investigate complaints of discrimination or interference with a miner’s rights under the Mine Act, or to look into the alleged personal culpability of a member of mine management? In these circumstances, the individual managers who typically act as the operator’s representative can be caught off guard and even be the target of the investigations This presentation will explore the framework of these investigation, and strategies for managing the investigation while also protecting the rights and defenses of individuals and the company.

Participants in this webinar will learn the following: Continue reading

CDC Drops Mask and Distancing Requirements for Fully Vaccinated Individuals — What About the Workplace?

By Conn Maciel Carey’s COVID-19 Task Force

By now you have likely heard the big news that yesterday, May 13th, the CDC updated guidance related to masks and physical distancing for individuals who are fully vaccinated (i.e., two weeks after receiving a single-dose vaccine or after the second dose in a two-dose series).  Specifically, in its updated guidance — “Interim Public Health Recommendations for Fully Vaccinated People” — the CDC now says fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances.  As of now, there is no outside limit to one’s status as fully vaccinated.

In a public video released just before the CDC posted its updated written guidance, CDC Director Dr. Walensky shared that “based on data about vaccine effectiveness and the low risk of transmission to others, and universal access to vaccines today, the CDC is updating our guidance for fully vaccinated individuals.  Anyone who is fully vaccinated can participate in indoor and outdoor activities—large or small—without wearing a mask or physical distancing.”  Even in the case of “breakthrough” infections, Dr. Walensky acknowledged that there is likely low risk of transmission to others.  Dr. Walensky cautioned that “over the past year, we saw how unpredictable this virus can be, so we may have to change these recommendations if things get worse.”

The question everyone is asking is whether this updated guidance applies to employees and workplaces.  The best answer we can give now is that the guidance does technically apply to workplaces, but there is a significant exception relative to workplaces built into the new guidance that swallows most of the relief it purports to provide, at least for now in many jurisdictions. Here’s our analysis about why this new guidance does apply to workplaces, but how geographically limited the relief is for the time being. Continue reading

Attorney Spotlight – Meet Eric Conn!

Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Practice Group. For more than twenty years now, Eric’s practice has focused exclusively on issues involving occupational safety and health law.

Before launching his own OSHA Practice, Eric practiced for more than a decade alongside the former first General Counsel of the OSH Review Commission. Eric then became Head of an OSHA practice at a large employment law firm that was honored as the “Occupational Health & Safety Law Firm of the Year” by Corporate INTL Magazine in 2014.

Mr. Conn is a popular speaker on OSHA topics, including as the director of Conn Maciel Carey’s annual OSHA Webinar Series, and he regularly keynotes trade group and industry conferences.  He is also the curator of the firm’s award-winning OSHA Blog, the OSHA Defense Report, and he is often quoted as a leader in the field in trade publications.

Eric and his team of OSHA-specialist attorneys develop safety and health regulatory strategies for employers across all industries with a particular emphasis on:

  • Advising and representing employers through inspections, investigations and enforcement actions involving OSHA and other safety-related agencies
  • Managing the full range of litigation against OSHA
  • Representing employers during U.S. DOJ investigations and prosecutions of alleged OSH Act criminal violations
  • Developing and auditing safety programs and policies
  • Providing workplace safety training and compliance counseling for employers

Get to Know Eric!

Where is your favorite vacation spot?   Continue reading

COVID-19 and MSHA: Best Practices and Compliance Strategies for Mine Operators [Webinar Recording]

On March 18, 2021, Nicholas W. Scala presented a webinar regarding COVID-19 and MSHA: Best Practices and Compliance Strategies for Mine Operators.

CaptureCOVID-19 is, has been, and will continue to be part of every workplace in the nation for the foreseeable future. To this point during the pandemic, MSHA has largely taken a back seat in providing guidance to the nation’s mine operators regarding COVID or attempting to enforce new or existing regulations with respect to COVID-19 in mine. The onus was passed onto mine operators to establish and implement best practices for the workforce. Now, as we enter the Biden Administration, mine operators will still shoulder the responsibility for ensuring workplace safety considerations are put into effect for COVID-19, but also, it is likely that MSHA may take a more active roll. This webinar will review lessons learned and best practices for mine operators regarding COVID-19 in the workplace, while also looking to any new or existing regulatory compliance obligation facing mine operators.

Participants in this webinar learned about the following: Continue reading

Attorney Spotlight – Meet Kara Maciel!

Kara ACFKara Maciel is a founding Partner of Conn Maciel Carey and Chair of the firm’s national labor & employment practice group

Ms. Maciel works to create workplace solutions for her clients.  She counsels clients on issues related to ADA accessibility requirements, wage hour compliance, prevention of harassment and discrimination, effective employment policies and procedures, and developing a compliant employee handbook. She also defends employers in litigation at both the federal and state levels.  For unionized and non-unionized companies, Ms. Maciel provides advice and counsel regarding the employer’s rights under the National Labor Relations Act.

Kara is an avid traveler (pre-pandemic) and foodie, so it makes perfect sense that she focuses much of her practice on issues facing companies in the hospitality industry (including hotel owners and managers, resorts, restaurants, and country clubs); retail; grocery; food distributors; and non-profit sectors.

Get to Know Kara!

Continue reading

OSHA Announces COVID-19 National Emphasis Program and Updated Interim Enforcement Response Plan

By Conn Maciel Carey’s COVID-19 Task Force

While OSHA is expected today, March 15th, to confirm that it will issue a COVID-19 Emergency Temporary Standard (ETS), and to get that ETS released within a month, there were also a couple of important developments last week regarding OSHA’s approach to COVID-19 enforcement.

On Friday afternoon, March 12th, OSHA launched a COVID-19 National Emphasis Program (“COVID-19 NEP”) to:

“focus its inspection and enforcement efforts on companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.”

This move by OSHA was not unexpected.  As we previously shared, Pres. Biden’s Day-1 OSHA Executive Order on Protecting Worker Health and Safety (the same EO that called for the COVID-19 ETS), separately called for OSHA to issue a COVID-19 NEP.

Goals of the COVID-19 NEP

In today’s announcement about the COVID-19 NEP, OSHA explained that “the goal of this NEP is to significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures and therefore, controlling the health hazards associated with such exposures.”  The NEP includes “an added focus to ensure that workers are protected from retaliation” and are accomplishing this by preventing retaliation where possible, distributing anti-retaliation information during inspections and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.

Industries and Workplaces Covered by the NEP

OSHA also explained that inspections under the COVID-19 NEP will include some follow-up inspections of worksites previously inspected by OSHA in 2020, but principally will focus on establishments in industries identified on targeting lists OSHA will develop now.  The NEP covers a broader set of workplaces than seems consistent with the goals of the NEP.  The directive creates three different lists of covered workplaces – high risk healthcare establishments and high risk non-healthcare establishments (which is how the NEP has been described), and also a third list of “Supplemental Industries for non-Healthcare in Essential Critical Infrastructure” that does not have the same high exposure risk characteristics of the first two lists.  The industries covered by these three lists are included at the bottom of this email.  Area Offices may also “add establishments to the generated master lists based on information from appropriate sources (e.g., local knowledge of establishments, commercial directories, referrals from the local health department, or from other federal agencies with joint jurisdictions, such as the Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Agriculture (USDA), media referrals or previous OSHA inspection history).” Continue reading