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

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

On Thursday, March 18th at 1:00 p.m. ET, join Nicholas W. Scala for 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 will learn the following: Continue reading

MSHA Issues Guidance for Mine Operators and Independent Contractors to Mitigate and Prevent Spread of COVID-19

By: Nicholas W. Scala and Conn Maciel Carey’s COVID-19 Task Force

On March 10, 2021, the Mine Safety and Health Administration (“MSHA”) released additional – and more detailed – COVID-19 guidance.  Issued under the Biden Administration, “Protecting Miners: MSHA Guidance on Mitigating and Preventing the Spread of COVID-19” is significantly more detailed than what was provided by MSHA in 2020. The enhanced guidance recommends mine operators and independent contractors working at mines take additional action to limit the spread of COVID-19 in the workplace. This is akin to what the Occupational Safety and Health Administration (“OSHA”) has recommended in its COVID-19 guidance for general industry workplaces.

Similar to the previous guidance issued by the agency, MSHA continues to rely heavily on best practices outlined byCOVID guidnce the Centers for Disease Control (“CDC”), however, unlike MSHA’s 2020 guidance, this time the agency lays out specific actions and policies it “recommends” operators undertake while highlighting several specific, existing MSHA regulations that can be applied to COVID-19 prevention for enforcement purposes.

Below, we take a look at some of the most impactful elements of the MSHA guidance, but for a complete review of the MSHA guidance, join us on Thursday, March 18th for the MSHA Defense Report 2021 WebinarCOVID-19 and MSHA: Best Practices and Compliance Strategies for Mine Operators.

COVID-19 Prevention Programs

 For the first time, MSHA formally recommends that each mine develop and implement a COVID-19 Prevention Program. These programs, which have been recommended by OSHA and are required in multiple state-plan OSHA Emergency Temporary Standards (“ETS”), are expected to be the mine’s (or contractor’s) outline and collection of COVID-19 mitigation efforts. Our Conn Maciel Carey workplace safety team has been recommending employers have these plans in place, and assisting clients with the development of COVID-19 Exposure Control and Response Plans throughout the pandemic.

Now, those employers regulated by MSHA will be expected to have the plans in place. In instances where OSHA has come on site for COVID-19 complaints or investigations, most often the first document request to the employer is for the site’s COVID-19 Prevention Program, even though under federal OSHA – as with MSHA – it is not currently required by regulation.

MSHA recommends a miner’s COVID-19 Prevention Program and plan would at a minimum: Continue reading

We are Celebrating International Women’s Day with our #ChooseToChallenge!

Female,Diverse,Faces,Of,Different,Ethnicity,Seamless,Pattern.,Women,EmpowermentToday is International Women’s Day, a global day celebrating the historical, cultural, and political achievements of women. To honor this day, we reflect on the significant progress made in gender equality and recognize the adversity that women continue to push through to attain a more inclusive world.  Just this year, Kamala Harris shattered the glass ceiling by not only becoming the first female U.S. Vice President, but the first Black, and South Asian-American U.S. Vice President.  

This significant event in recent history showcases the many women who have paved the way.  Women such as Shirley Chisholm, the first Black woman elected to Congress; Eleanor Roosevelt, the first U.S. delegate to the United Nations; and, of course, Ruth Bader Ginsberg, the second female and the first Jewish female Justice of the U.S. Supreme Court.  As we already know, we experienced the loss of Justice Ginsberg just last year, but the impact she made as a pioneer who fought for women’s rights, and a leading voice for civil rights and liberties influences the gender equality movement to this day.

What do you #choosetochallenge?

Picture1The theme for International Women’s Day 2021 is #choosetochallenge.  This initiative is meant to drive actions that will create the gender-equal society we all deserve.  We must challenge ourselves to take accountability for our own thoughts and actions, and be the change we want to see in the world. Check out what Conn Maciel Carey’s Attorneys and Staff #choosetochallenge! Continue reading

MSHA’s 2020 in Review and 2021 Forecast [Webinar Recording]

On February 24, 2021, Nick Scala of Conn Maciel Carey presented a webinar regarding MSHA’s 2020 in Review and 2021 Forecast.Capture

With 2020 behind us, now is the time to take stock of the state of MSHA as the Biden Administration begins. We will review the past year’s enforcement trends and initiatives, as well as regulatory agenda, highlighting the evolution of MSHA and its priorities during the Trump Administration. We will also look to the future, examining how MSHA is most likely to change in the first year of the Biden Administration, and what new enforcement policies will replace those the industry has grown accustomed to the last 4 years.

Participants in this webinar learned the following: Continue reading

[Webinar] MSHA’s 2020 in Review and 2021 Forecast

On Thursday, February 24th at 1:00 p.m. ET, join Nicholas W. Scala for a webinar regarding MSHA’s 2020 in Review and 2021 Forecast.Capture

With 2020 behind us, now is the time to take stock of the state of MSHA as the Biden Administration begins. We will review the past year’s enforcement trends and initiatives, as well as regulatory agenda, highlighting the evolution of MSHA and its priorities during the Trump Administration. We will also look to the future, examining how MSHA is most likely to change in the first year of the Biden Administration, and what new enforcement policies will replace those the industry has grown accustomed to the last 4 years.

Participants in this webinar will learn the following: Continue reading

Announcing Conn Maciel Carey’s 2021 MSHA Webinar Series

2021 MSHA Webinar Series

Announcing Conn Maciel Carey’s
2021 MSHA Webinar Series

With the Trump Administration’s time in office behind us, mine operators must prepare for a changing MSHA regulatory landscape under the Biden Administration. While MSHA continued its mission under Assistant Secretary Zatezalo the past few years, and some significant changes to the MSHA were put into effect – like the “blurring” of the Metal/Nonmetal and Coal divisions – there are a number of outstanding items that we now expect to move forward at the direction of the Biden team. While it is yet to be seen who will head MSHA for President Biden’s term, the anticipated leaders of the Department of Labor and OSHA have strong ties to labor organizations, which historically results in more stringent regulation and greater enforcement for employers. These impacts may be even more acutely felt by the industry when MSHA eventually publishes its rulemaking efforts on topics such as Crystalline Silica (Quartz) and Powered-Haulage Safety, which were expected before the Trump team left office. With the winds of change moving through Washington D.C., it is now as important as ever to keep tabs on MSHA developments and prepare for inspections.

Conn Maciel Carey’s complimentary 2021 MSHA Webinar Series includes free programs put on by attorneys in the firm’s national MSHA Practice Group, and is designed to give you insight into the changes and developments at MSHA during this period of flux and unpredictability. 

To register for an individual webinar, click the registration link in the program descriptions below. To register for the entire 2021 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’s 2020 in Review and 2021 Forecast

Wednesday, February 24th

MSHA Update and FMSHRC Decision Review

Thursday, August 19th

COVID-19 & MSHA: Best Practices and Compliance Strategies

Thursday, March 18th

MSHA/OSHA Jurisdiction:
When, How and Why to Challenge

Tuesday, September 14th

MSHA Special Investigation Management: Handling 110 and 105(c) Investigations

Wednesday, May 26th

Contesting MSHA Citations and Orders: Tips and Strategies when Challenging

Wednesday, October 27th

What to Expect from DOL Under a Biden Admin.

Wednesday, June 16th

Recap of Year One of the Biden Administration

Tuesday, December 14th


MSHA Publishes Final Rule on Penalty Inflation Increase for 2021

By: Nicholas W. Scala

Adhering to what is now an annual requirement since passage of the 2016 Inflation Adjustment Act, on January 14th 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 2021. The increased penalties will determine assessments for mine production operators and independent contractors for all citations and orders assessed after January 14th.

For the most basic citations, the increase is minimal. The statutory minimum penalty for regularly assessed penalties increases from $137 to $139. The inflation adjustment is less than in 2020, with increase coming in at just a hair over 1%, but as always the increase becomes more noticeable as citations/orders become more severe and the penalty criteria 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 will increase to $74,775, from $73,901 in 2020.

2021 inflation snip

Other increases of note include:

  • Minimum Penalty for 104(d)(1) Citation/Order
    • Increase from $2,464 to $2,493
  • Minimum Penalty for 104(d)(2) Order
    • Increase from $4,925 to $4,983
  • Minimum Penalty for Failure to Notify MSHA of an Accident within 15 Minutes
    • Increase from $6,159 to $6,232
  • Maximum Daily Penalty for Failing to Abate MSHA Citation (104(b) Order)
    • Increase from $8,006 to $8,101
  • Maximum Penalty for Flagrant Violations under Section 110(b)(2)
    • Increase from $270,972 to $274,175

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 2021. 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)

President Biden’s Day 1 Executive Order regarding MSHA and OSHA Response to the COVID-19 Pandemic

By Conn Maciel Carey’s COVID-19 Task Force

Here is the big update we’ve been holding our breath about – what the Biden Administration’s plans will be for federal COVID-19 emergency standards (OSHA and/or MSHA).  As we expected, in just his first full day in Office (January 21, 2021), President Biden has already issued an Executive Order focused on the agencies’ approach to managing the COVID-19 crisis in the workplace, but the answer about federal COVID-19 ETSs is not as clear as we expected, or at least, the definitive answer will come a little later.

In the Order entitled “Executive Order on Protecting Worker Health and Safety,” President Biden instructs the Department of Labor, and several other departments, to review and explore mechanisms to protect the workforce from COVID-19. This includes MSHA, by instructing:

“The Secretary of Labor, acting through the Assistant Secretary of Labor for Mine Safety and Health, shall consider whether any emergency temporary standards on COVID-19 applicable to coal and metal or non-metal mines are necessary, and if such standards are determined to be necessary and consistent with applicable law, issue them as soon as practicable.”

With greater detail, President Biden directed federal OSHA to revisit its overall strategy for regulating and enforcing issues associated with workplace spread of COVID-19.  Specifically, President Biden has mandated the Assistant Secretary of Labor for OSHA to take four key actions relative to COVID-19 in the workplace:

  1. By February 4th, OSHA must consult with the heads of other appropriate executive departments and agencies and update OSHA’s COVID-19 guidance to employers on workplace safety during the COVID-19 pandemic based on the best available scientific knowledge about virus;
  2. Review OSHA’s existing enforcement efforts and strategies related to COVID-19 to identify any short-, medium-, and long-term changes that should be made to better protect workers;
  3. Regardless of the outcome of that enforcement review, the Order mandates that OSHA launch a COVID-19 enforcement National Emphasis Program to focus OSHA’s enforcement resources on COVID-19 related violations and anti-retaliation protection; and
  4. Consider whether an emergency temporary standard on COVID-19, including with respect to masks in the workplace, is necessary….”

Our expectation has been that this early Executive Order would dictate to MSHA and OSHA that they must issue an ETS, rather than just to consider whether one is needed.  Perhaps this is just a formality, and the answer is preordained, but for the moment, federal COVID-19 ETSs are not a guarantee.

If (and we assume when) OSHA determines that an ETS is needed, the Executive Order does set a deadline by when OSHA must finalize and issue the rule – March 15, 2021. MSHA did not receive a deadline, instead being instructed to “issue them [ETS] as soon as practicable” if deemed necessary for coal and/or metal/non-metal mines.

Also as we expected, the Order instructs OSHA that if it adopts a federal emergency rule, it must also ensure that the 20+ federal OSHA approved State OSHA agencies also do so: “ensure that workers covered by such plans are adequately protected from COVID-19, consistent with any revised guidance or emergency temporary standards issued by OSHA . . . .”

We will continue to track developments at MSHA and OSHA under the new Biden Administration, and will share with you when we see any material changes to COVID-19 guidance from MSHA/OSHA, and/or progress towards a federal COVID-19 emergency temporary standards.  As we have seen throughout the pandemic, there remains greater pressure on OSHA with respect to providing guidance and regulating COVID-19 in the workplace, however, with the new administration in place we anticipate that MSHA will respond with regulation, likely in a fashion similar to OSHA.

For additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 Resource Page for an extensive index of frequently asked questions with our answers about HR, employment law, and MSHA/OSHA regulatory developments and guidance, as well as COVID-19 recordkeeping and reporting flow charts.  Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.

President-Elect Biden Announces Boston Mayor Marty Walsh as his Choice for Secretary of Labor

By: Kara M. MacielEric J. Conn, and Beeta B. Lashkari

On January 7, 2021, President-elect Joe Biden announced his much-awaited choice for nominee to serve as Secretary of Labor, selecting Boston Mayor Marty Walsh.  Mayor Walsh made his mark as a labor leader, ultimately heading the Building and Construction Trades Council from 2011 to 2013.   Mr. Walsh was also a full-time legislator, serving in the Massachusetts state legislature for some 17 years before being elected mayor in 2014.Picture1

If confirmed, it is expected that Mayor Walsh’s close personal friendship with President-elect Biden will elevate the importance of the Labor Department in President Biden’s cabinet, allowing a Secretary Walsh significant influence in the Administration.

Mayor Walsh’s strong ties to organized labor and his selection follows through on President-elect Biden’s campaign promise to give unions a stronger voice in labor policy in his Administration. Mayor Walsh has a reputation as a “pragmatic dealmaker,” and he is respected in Massachusetts by both business and labor for his reasonable approach to solving labor and employment issues facing the state.

Of the many issues likely to be tackled by the Labor Department over the next few years, one of the first and most impactful will be the likely issuance of a federal COVID-19 Emergency Temporary Standard by OSHA, and possibly by MSHA as well.  President-elect Biden has pledged to have OSHA quickly address this issue, however he has not expressly commented on a MSHA ETS.  If a federal ETS is promulgated, it would replace the current Administration’s approach, which has relied heavily on CDC and agency guidance, as well as existing OSHA standards, like the respiratory protection standard and recordkeeping rules, to issue citations.  With respect to COVID-19, under Mayor Walsh’s leadership, the City of Boston implemented a broad array of sector-specific workplace instructions for businesses designed to limit the spread of the virus, including requirements for face coverings, social distancing, building capacity limits, staggered work shifts, and worksite ventilation improvements.

As Labor secretary, Mr. Walsh would be responsible not just for worker protection standards, but also for renewed paid family-leave benefits and expanded access to unemployment insurance, among myriad other responsibilities.  Likewise, it is expected that DOL under a Biden Administration would rescind a just-finalized regulation issued over the appropriate test for classifying whether workers are independent contractors or employees.

Republicans like House Education and Labor Committee Ranking Member Rep. Virginia Foxx (R-NC) are already pushing back on President-elect Biden’s selection, warning that Mr. Walsh’s labor background signals that he will try to impose “punitive one-size-fits-all regulations” on employers.  Nonetheless, based on his track record, it is expected that Mr. Walsh may make efforts to force compromise between business and labor rather than taking a more ideological, anti-business approach that would likely have been followed had President-elect Biden nominated Senator Bernie Sanders as Labor Secretary, who is said to have wanted the post.

While his selection awaits the Senate confirmation process, Mr. Walsh could be confirmed by a simple majority vote that would not require backing from a single Republican senator.