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.
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.
Donna Pryor and Leah Kaiser have written an article on Safety Law Matters outlining OSHA’s new guidance on mitigating and preventing the spread of COVID-19 in the workplace. The latest OSHA guidance standardizes a new name for employer policies: “COVID-19 Prevention Program.” In the guidance, OSHA states employers should implement COVID-19 Prevention Programs in the
Donna Pryor has written an article outlining President Biden’s new OSHA executive order that was published on Safety Law Matters, directing OSHA to issue revised guidance to employers on workplace safety during the COVID-19 pandemic.
The Assistant Secretary of Labor for MSHA was also directed to consider whether any emergency temporary standards on COVID-19
Partner Brian Hendrix recently published “‘One MSHA’ Is Coming Into Focus” in Rock Products Magazine, weighing in on the “One MSHA Initiative.” Continue reading here.
Back in November, MSHA head David Zatezalo indicated that MSHA’s initiative to “blur the lines” between coal and M/NM enforcement had ended. As an apparent follow-up, in late December MSHA released a new, unified M/NM and coal inspection handbook, and has now started training investigators on the new handbook.
Continue Reading MSHA Unveils New Unified Inspection Handbook
Read Mark Savit’s recent column in Rock Products that looks back at 2019 and ahead to 2020.
Avi Meyerstein recently published an article in Rock Products examining the Mine Safety and Health Administration’s 2017 “Final Rule on Examinations of Working Places in Metal and Nonmetal Mines.” Read the article here.
Brian Hendrix recently published an article in the November 25, 2019 edition of Coal Age on the Mine Safety and Health Administration’s use of enforcement rather than the other tools at its disposal. Read “Drugs, MSHA Enforcement, Maslow’s Hammer” here.