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Partner Brian Hendrix recently authored “MSHA’s Current Rulemaking Agenda” in Coal Age. The article outlines the U.S. Mine Safety and Health Administration’s (MSHA) rulemaking plans that include a powered haulage rule, followed by a Respirable Crystalline Silica (RCS) rule.  No details are available on the RCS rule, but it is safe to assume MSHA

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (ETS) applicable to employers of 100 or more employees. The ETS requires employers to adopt a soft vaccine mandate obligating employees to either get vaccinated or to undergo regular COVID-19 testing and to wear a face covering at work. OSHA expressly states that the ETS pre-empts all state or local laws that are contrary to the ETS requirements.

The ETS was originally set to be effective on the date of publication in the Federal Register (November 5, 2021), with employees who work for covered employers having until January 4, 2022 to get vaccinated or otherwise comply with the testing/masking requirements. However, on Saturday, November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an emergency stay of the ETS.  Hence, it is not currently enforceable with respect to workplaces located in the Fifth Circuit, which includes Louisiana, Mississippi, and Texas.  The stay may also extend to other states across the country, although that is not clear as the court did not specify whether its decision applied nationwide or only to the states under its jurisdiction. Regardless, other challenges to the rule have been filed around the country. Notwithstanding this emergency stay, we advise that employers that would be subject to the rule still consider preparing for enforcement while this matter is being litigated. More details on the rule, if it withstands the legal challenges, are below.

The ETS places the compliance and recordkeeping burden squarely on employers, and it leaves employers to decide whether employees may opt for testing instead of vaccination.  Under the ETS, employers may: (1) require all employees to be vaccinated (except those exempted for religious or medical reasons) l; or (2) require employees to be either vaccinated (except those exempted for religious or medical reasons) or wear a mask and be tested regularly.  The ETS also leaves it up to employers to decide whether the costs of testing and masks will be covered by the employer or by the employees who opt for testing/masking instead of vaccination.

MSHA

The new OSHA rule is not enforceable by the Mine Safety and Health Administration (MSHA) and does not apply to mines regulated by MSHA. MSHA continues to encourage miners to get vaccinated, and mine operators and organized labor are doing the same. MSHA has publicly stated (as recently as last week) that it does not currently intend to issue an emergency standard on COVID.

Continue Reading OSHA Issues COVID-19 Vaccine Mandate for Employers of 100 or More Employees, No Mandate from MSHA

Partner Brian Hendrix has published an article for Rock Products explaining MSHA’s focus on Power Haulage Safety. Brian examines the best practices provided by MSHA and offers advice to quarry operators looking to develop and implement a mine-specific plan for powered haulage safety.

For more information, read the article here.

Senior Counsel Coty Hopinks-Baul has published an article in Coal Age titled “CWA’s Permit Shield Spans SMRCA”.

In the article, Coty details a recent decision in the case of Southern Appalachian Mountain Stewards v. Red River Coal Co. Inc., where the Fourth Circuit upheld a district court’s dismissal of a citizen suit to enforce

Partner Megan Caldwell recently published “Trump Makes Last Minute Push to Boost Coal, But Biden Presidency’s Vow to Decarbonize Power Generation Causes Concern” in Coal Age, discussing recent and anticipated changes impacting the coal industry as the Trump administration ends and Biden kickstarts his ambitious clean energy agenda.

Read the article here.

Shelter-in-place strategies to prevent the spread of the coronavirus (COVID-19) has disrupted the U.S. workplace. However, unlike a typical office environment, mines cannot operate without employees on property. In order to prepare for the outbreak, every employer should spend some time assessing the risk to their workforce and confirming whether or not they have reason

“Each case of advanced black lung disease is an entirely preventable tragedy and represents mine operators’ unwillingness to adequately control mine dust exposures, and safety regulators failure to set, monitor and enforce standards necessary to protect miners,” writes our Erik Dullea. Learn more in his April piece via Coal Age.