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 the MSHA-specialist attorneys in the firm’s national MSHA Practice Group, 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

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

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.

Happy Holidays and Happy New Year from Conn Maciel Carey!

From all of us here in the national MSHA Workplace Safety Practice Group at Conn Maciel Carey, to all of you, happy holidays and happy New Year.  We wish you a joyful and safe holiday season, and a 2021 that helps us all forget about this challenging year.

Please enjoy this holiday greeting from the CMC family to your family:

Despite this relentless year, we have so much to be thankful for at Conn Maciel Carey, but most of all, we thank you all for continuing to turn to us for counsel and legal services.  Please contact us if you have questions about any of the topics we have covered here on the MSHA Defense Report blog, or if you have ideas for other subjects we should be covering.  And of course, contact any of us if there is ever anything our national MSHA Workplace Safety Practice Group at Conn Maciel Carey can do to help you or your company with MSHA law issues.

[Bonus Webinar] Conversation with the Director of NIOSH about COVID-19 in the Workplace

On Monday, December 21, 2020 at 1 p.m. ET, join Kate McMahon, a Partner in Conn Maciel Carey’s national OSHA Practice, and special guest Dr. John Howard, the Director of the National Institute for Occupational Safety and Health (NIOSH), for a one-on-one Q&A event regarding COVID-19 in the workplace.

Cases continue to spike throughout the United States, while employers try to keep pace with ever-shifting guidance from the CDC, OSHA, and state and county health departments, and face several new COVID-19 emergency regulations around the country. NIOSH works closely with the CDC to develop its COVID-19 guidance and to help educate Industry on effective infection control and response strategies. NIOSH also provides support to the White House Coronavirus Taskforce and assists states and local health departments develop effect strategies and policy to address COVID-19 in the workplace.

Through this Q&A session, Dr. John Howard, the Director of NIOSH for 17 years and counting, provides detailed insight and advice on the workplace safety and health implications of COVID-19 and what employers can expect next and how they can protect their workers from this pandemic. Participants in this webinar will learn: Continue reading

[Webinar Recording] Legal Responsibilities and Liabilities for Mine Operators and Contractors at MSHA Facilities

On December 1, 2020, Nick Scala of Conn Maciel Carey presented a webinar regarding Legal Responsibilities and Liabilities for Mine Operators and Contractors at MSHA Facilities.

Dec. 2020 webinar Snip

The relationship between production operator and independent contractor at a mine site is more critical than ever to the industry. Most operations welcome contractors on site to perform tasks, from routine equipment maintenance, to specialty construction and service. With the increase in contractors in the mining industry, MSHA recently noted a sharp increase in the number of serious and fatal injuries sustained by contractors. Now, independent contractors will be under a microscope when at mine sites. Therefore, it is essential for production operations and their contractors to understand the obligations of each party under MSHA. This webinar will review the delineation of responsibilities for both production and independent contractors. It will also provide strategies for working cooperatively while protecting each company’s interests.

During this webinar, participants learned about: Continue reading

CDC Updates Return-to-Work Guidance Again – Reduces Quarantine Time

By Conn Maciel Carey’s COVID-19 Task Force

As we noted in a Client Alert last month, the CDC issued its new guidance for “Close Contacts” in a way that would make quarantine circumstances much more likely; i.e., CDC’s new definition of close contact makes it explicit that the 15-minute exposure period (i.e., within 6-feet of an infected individual for 15 minutes) should be assessed based on a cumulative amount of time over 24 hours, rather than just a single, continuous 15-minute interaction.

Today, the CDC issued new guidance that would reduce the duration of many quarantines from 14 days to 10 days and, in some cases to 7 days.  Specifically, CDC identified the following options as acceptable alternatives to a 14-day quarantine:

  • Quarantine can end after Day 10 without testing and if no symptoms have been reported during daily monitoring.
  • If testing is available, then quarantine can end after Day 7 if a respiratory specimen tests negative and no symptoms were reported during daily monitoring.  The specimen may be collected and tested within 48 hours before the time of planned quarantine discontinuation (e.g., in anticipation of testing delays), but quarantine cannot be discontinued earlier than after Day 7; i.e., testing should be initiated no earlier than Day 5 after the close contact exposure occurs.

In either scenario, additional criteria Continue reading

What Employers Need to Know About Mandatory COVID-19 Vaccines

By Conn Maciel Carey’s COVID-19 Task Force

With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available.  This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans.  Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.  Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials.  Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study.  The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis.  According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur in the third week of November.  Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Modern COVID-19 vaccine.  An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.  Accordingly, as the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.

  1. Can Employers Require Employees to Take the COVID-19 Vaccine?

As a threshold matter, it should be noted that, according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated.  Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.  Once a vaccine receives an EUA from FDA, FDA has authorized the vaccine for use according to the terms of the EUA.

In general though, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended.  Although the issue is only now coming to the forefront of our national conscience, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers.  Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA).

OSHA has long taken the position that employers can require employees to take flu and other vaccines, but emphasizes that employees “need to be properly informed of the benefits of vaccinations.”  In the healthcare industry, for example, Continue reading

Important COVID-19 Update: “Close Contact” Redefined to Include 15 Minutes Cumulative

By Conn Maciel Carey’s COVID-19 Task Force

We want to alert you to a significant COVID-19 development out of the CDC yesterday.  Specifically, the CDC just announced a material revision to its definition of “Close Contact.”  The new definition makes it explicit that the 15-minute exposure period (i.e., within 6-feet of an infected individual for 15 minutes) should be assessed based on a cumulative amount of time over 24 hours, not just a single, continuous 15-minute interaction.

Here is the new definition included on the CDC’s website:

Close Contact – Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.

* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.​

CDC’s revised view of what constitutes a Close Contact is based on an exposure study at a correctional facility.  Here is the CDC’s public notice about the correctional facility analysis.  The analysis apparently revealed that virus was spread to a 20-year-old prison employee who interacted with individuals who later tested positive for the virus, after 22 interactions that took place over 17 minutes during an eight-hour shift.  

An important consequence of this revision is the impact it will have on employers’ ability to maintain staffing because it establishes a much lower threshold trigger for required quarantine.

Recall that the CDC and OSHA recommend that an employee quarantine for 14 days if s/he experiences a Close Contact exposure with someone who later is determined to have been COVID positive at the time of the contact. Continue reading