By A. Scott HeckerIlana R. Morady, and Brent I. Clark

Seyfarth Synopsis: On January 21, 2021, President Biden directed MSHA to consider whether COVID-19 emergency temporary standards (“ETS”) are necessary for coal and metal/non-metal mines, and if so, to issue them “as soon as practicable.”  While MSHA has not announced an ETS, it recently published new guidance regarding COVID-19 worker safety in mines, Protecting Miners: MSHA Guidance on Mitigating and Preventing the Spread of COVID-19.”

MSHA’s materials echo (i.e., basically restate) OSHA’s January 29, 2021 revised guidance “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which we blogged about here.  MSHA’s guidance highlights steps operators and miners should take to ensure safe and healthy workplaces, and recommends that operators implement COVID-19 prevention programs, which MSHA – like OSHA – opines “are the most effective way to mitigate the spread of COVID-19 at work.”  MSHA lists 15 elements that effective plans should include:

  1. Assign a mine coordinator;
  2. Identify where and how workers might be exposed to COVID-19 at work;
  3. Identify measures that will limit the spread of COVID-19 in the workplace, including hazard removal, engineering controls, administrative controls, PPE, and other measures;
  4. Consider protections for miners at higher risk for severe illnessthrough supportive policies and practices;
  5. Educate and train miners on COVID-19 policies and procedures using accessible formats and in a language they understand;
  6. Instruct miners who are infected or potentially infected to stay home and isolate or quarantine;
  7. Minimize negative impacts of quarantine and isolation on workers;
  8. Isolate miners who show symptoms at work;
  9. Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the mine environment;
  10. Provide guidance on screening and testing;
  11. Record and report COVID-19 infections and deaths;
  12. Implement protections from retaliation and an anonymous process for miners to voice concerns about COVID-19-related hazards;
  13. To the extent possible, make a COVID-19 vaccineor vaccination series available at no cost to all eligible employees;
  14. Treat vaccinated workers the same as those who are not; and
  15. Consider other applicable MSHA standards.

Though MSHA does not currently have COVID-19 regulations, we understand the agency is still considering whether an ETS is necessary.  If MSHA decides to promulgate an ETS, a number of these guidance provisions will likely be part of that standard.  Consequently, operators should evaluate their compliance with these guidelines now to prepare for any forthcoming MSHA ETS.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.