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By Brent I. Clark, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: MSHA just announced its Final Rule on Examinations of Working Places in Metal and Nonmetal Mines. 83 Fed. Reg. 15055 (April 9, 2018).

The Final Rule, which will be effective on June 2, 2018, requires that:

  • Each working place be examined at least once each shift for conditions that may adversely affect safety or health of miners before work begins or as miners begin work in that place;
  • Mine operators promptly notify miners in affected areas of any conditions that may adversely affect their safety or health and promptly initiate appropriate corrective action. Notification is only necessary when adverse conditions are not promptly corrected before miners are exposed;
  • A record of the examination be made before the end of each shift, including the name of the person conducting the examination; the date of the examination; location of all areas examined; a description of each condition found that may adversely affect the safety or health of miners that is not promptly corrected, and the date of the corrective action (when that occurs); and
  • The record be made available to MSHA and miners’ representatives upon request.

The new rule imposes new requirements on mine operators, but is notably less burdensome that previous iterations of the workplace examination rule that has been in process for several years. For example, a previous proposed version of the rule would have required operators to examine workplaces before work began, whereas now the rule adds on “or as miners begin work in that place.” Also importantly, a previous version of the rule would have required operators to notify miners of all identified conditions, even if those conditions had been corrected before work began. Now, under the final rule, notification will only be required with respect to conditions that are not corrected. On a related note, operators need only make a record of conditions that are not promptly corrected.

Although the new rule is less burdensome on the regulated community than previous versions of the rule would have been, operators need to be mindful of potential pitfalls. The new rule appears to leave open the opportunity for MSHA to use operator examination records as “evidence” of a violation, or to support higher negligence findings. And of course the new requirements will provide MSHA with more bases to issue citations, since it will be a violation to not complete the various requirements under the new rule, including documentation of the date corrective action is completed for issues not promptly corrected.

MSHA is holding stakeholder meetings at six locations across the country to provide “outreach and compliance assistance materials on the Final Rule.” In addition, that Agency plans stakeholder meetings in Seattle, Washington, and at MSHA’s district offices by way of video teleconferencing at a later date.

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

By Brent I. Clark, James L. Curtis, Ilana R. Morady, Patrick D. Joyce, Adam R. Young, and Daniel Birnbaum

Seyfarth Synopsis:  Here is today’s update from the presentations and room discussions at the ABA Occupational Safety and Health Law Committee’s 2018 Midwinter Meeting.

We are attending the ABA Occupational Safety and Health Law Meeting this week in Santa Monica, California.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.

Ann Rosenthal, Associate Solicitor for the Occupational Safety and Health Division, delivered remarks from the Solicitor’s Office and stressed that the change in administrations would not lessen enforcement efforts by OSHA.  Ms. Rosenthal discussed highlights from the Solicitor’s Office from the last year that included cases involving workplace violence, fall protection, and criminal penalties for employers.  It is anticipated that the Department of Labor will continue to focus its efforts on prosecuting these types of cases.  Ms. Rosenthal also indicated, while responding to questions, that the new administration is considering eliminating regulations under the beryllium rule and record-keeping rule.

Tom Galassi, Director, Directorate of Enforcement of OSHA, is also here and discussed key enforcement initiatives. Generally, Mr. Galassi echoed the general tone of Ms. Rosenthal’s remarks, emphasizing that OSHA is not slowing down in its enforcement efforts.  Accordingly, Mr. Galassi covered rising penalties, which continue to sharply increase.  Mr. Galassi highlighted that severe injury reports also continue to rise steadily, up from 10,887 to 11,590 reports last year.  Additionally, Mr. Galassi discussed two standards that were recently updated and have begun to be enforced by OSHA – the silica standard and walking work surfaces standard.  Both standards implement substantial burdens on employers and create compliance issues that impacts employers in a wide array of industries.

Mr. Galassi also stressed OSHA’s increasing budget and goal to increase the agency’s reach.  To that end the agency added over 70 employees last year comprised of enforcement and compliance personnel.  As such, employers should be sufficiently prepared for enforcement efforts that will continue to rise from these additional resources.

More to come from the conference tomorrow.…

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.

By Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Bureau of Labor Statistics (BLS) has found a seven percent increase in 2016 fatal injuries reported over those reported in 2015. BLS noted that this was the third consecutive increase in annual workplace fatalities.  The statistics show an ongoing struggle for employers with a number of occupational safety and health health hazards.

By industry or workplace, BLS found that work injuries involving transportation incidents remained the most common fatal event in 2016, accounting for 40 percent of all industries.  Workplace violence and other injuries by persons or animals increased 23 percent, becoming the “second-most common work related fatal event in 2016.” For more information about workplace violence we have frequently blogged on the topic.  See for instance, Airport Active Shooter Incident — What Can Happen in Just 15 Seconds, and What Business Needs to Know, OSHA Updates its Enforcement Procedures Directive for Exposure to Workplace Violence, Proposed Rule for Prevention of Workplace Violence in Healthcare and Social Assistance Industries, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers.

In addition, exposure to harmful substances or environments rose 22 percent.  “Workplace homicides increased by 83 cases to 500 in 2016, and workplace suicides increased by 62 to 291. This is the highest homicide figure since 2010 and the most suicides since Census of Fatal Occupational Injuries (CFOI) began reporting data in 1992.”

Stunnningly, overdoses from the non-medical use of drugs or alcohol while on the job increased from 73 in 2011 to 217 in 2016. “Overdose fatalities have increased by at least 25 percent annually since 2012.”  Fatal injuries in the leisure and hospitality sector were up 32 percent and reached an “all-time series high in 2016.”  BLS concluded that this was largely due to a 40-percent increase in fatal injuries in the food services and drinking places industry.

Occupations with increases greater than 10 percent in the number of fatal work injuries in 2016 include:

  • Food preparation and serving related occupations (64 percent);
  • Installation, maintenance, and repair occupations (20 percent);
  • Building and grounds cleaning and maintenance occupations (14 percent); and
  • Sales and related occupations (11 percent).

Foreign-born workers made up about one-fifth of the total fatal work injuries. Thirty-seven percent of the workers were born in Mexico, followed by 19 percent from Asian countries.  Workers age 55 years and over had a higher fatality rate than other age group.

In response to the BLS Report, Loren Sweatt, Deputy Assistant Secretary for OSHA, commented that “[a]s President Trump recognized by declaring opioid abuse a Nationwide Public Health Emergency, the nation’s opioid crisis is impacting Americans every day at home and, as this data demonstrates, increasingly on the job.”  “The Department of Labor will work with public and private stakeholders to help eradicate the opioid crisis as a deadly and growing workplace issue.”

Employers in the industries identified in the CFOI Report, including oil and gas, construction, retail, mining, and others need to be mindful of OSHA’s and MSHA’s enhanced monitoring and inspection activities. Take steps to ensure that company safety and health policies and training are up-to-date and are being rigorously implemented. Be sure to have a plan in-place for when an agency inspector does come calling, so that the company is protected and any citations and liabilities are minimized.

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

By Brent I. Clark and Ilana R. Morady

iStock_000009254156LargeSeyfarth Synopsis: The proposed MSHA rule would require mine operators to examine their mines and to notify miners of dangerous conditions.

MSHA announced today that it has formally submitted a proposed mine examination rule for publication in the June 8, 2016 Federal Register.  81 Fed. Reg. 36818.

The proposed mine examination rule (RIN:1219-AB87) would require metal and nonmetal mine operators to: (1) examine their facilities before a shift begins; (2) explicitly notify miners of any dangerous conditions found; and (3) record their examinations and establish processes to fix hazards.  The current rule allows operators to examine mines during a shift.

MSHA will gather input on this proposed rule in four meetings to be held in Salt Lake City, UT (July 19), Pittsburgh, PA (July 21), Arlington, VA (July 26) and Birmingham, AL (Aug. 4).

Last year, MSHA chief, Joe Main, stated that tightening mine inspection requirements was one of his highest regulatory priorities.

By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Safety at workThe U.S. Department of Justice (DOJ) and the Department of Labor (DOL) announced last week an expansion of its worker endangerment initiative to address worker safety violations through the use of enhanced criminal fines and penalties.

According to Deputy Attorney General Sally Quillian Yates, “on an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked.” “Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”  Department of Labor Deputy Secretary Chris Lu stated that “today’s announcement demonstrates a renewed commitment by both the Department of Labor and the Department of Justice to utilize criminal prosecution as an enforcement tool to protect the health and safety of workers.” DOJ News Release (December 17, 2015).

According to the DOJ, last year it held meetings to explore a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations. This culminated in a “decision to consolidate the authorities to pursue worker safety statutes within the Department of Justice’s Environment and Natural Resource Division’s Environmental Crimes Section.”  In a December 17, 2015 Memo, sent to all U.S. Attorneys across the country, Deputy Attorney General Yates urged federal prosecutors to work with the Environmental Crimes Section in pursuing criminal prosecutions for worker endangerment violations.

The worker safety statutes had generally provided for only misdemeanor penalties.  However, prosecutors have now been encouraged to consider utilizing Title 18 and environmental offenses, “which often occur in conjunction with worker safety crimes,” to enhance penalties and increase deterrence.  Specifically, the Memo indicates that prosecutors can “make enforcement meaningful” by charging other serious offenses that often occur in association with OSH Act violations. Examples offered include false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. To facilitate interagency cooperation in implementing this initiative, the DOJ and the DOL have also executed a Memorandum of Understanding on Criminal Prosecutions of Worker Safety Laws (December 17, 2015).

Employers should be leery of these now “added” enforcement authorities. With penalties ranging from five to twenty years of incarceration and significant money fines, criminal enforcement of workplace safety accidents are now significantly more serious.

By James L. Curtis, Meagan Newman, and Ilana R. Morady

Last week we attended the ABA Occupational Safety and Health Law Meeting in Naples, Florida. This included representatives from the OSHA Review Commission, the MSHA Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office.

Tom Galassi, Director, Directorate of Enforcement of OSHA, spoke at length on Wednesday about key enforcement initiatives. Galassi reaffirmed OSHA’s continued focus on using the General Duty Clause to cite employers for hazards such as heat, workplace violence, and chemical exposure below OSHA’s established PELs. He also responded to questions about OSHA’s new “non-mandatory” root cause analysis form the Agency is requesting in connection with injury and illness reporting.

Some OSHA area offices are conducting inspections if employers do not submit the new form, which essentially transforms the form into a mandatory obligation if an employer wants to avoid an inspection. Galassi did not confirm that area offices are treating the “non-mandatory” form differently, but simply stressed that the form is in fact non-mandatory.

Employers who report any injury under OSHA’s new reporting rules should be aware that OSHA is de facto treating its request for root cause analysis as mandatory, even though OSHA has not complied with notice and comment rulemaking procedures. The implications of an employer’s response are serious and should be carefully considered.

More to come from the conference tomorrow.…

By Brent I. Clark, Kerry M. Mohan, and Craig B. Simonsen

The U.S. Mine Safety and Health Administration (MSHA) recently sent three mining operations notices of a pattern of violations (POV) of health or safety standards under section 104(e) of the Federal Mine Safety and Health Act of 1977 (Mine Act).  The MSHA POV screening this year was the first one conducted since MSHA’s revised pattern of violations rule (78 Fed. Reg. 5056 (Jan. 23, 2013)) went into effect on March 25, 2013.

Under the Mine Act, MSHA is authorized to issue a POV notice to mine operators that demonstrate a disregard for the health and safety of miners through a “pattern of significant and substantial” (S&S) violations and employee injuries. A POV notice is reserved for the mines “that pose the greatest risk to the safety of miners.” MSHA defines a significant and substantial violation as one that is reasonably likely to result in a reasonably serious injury or illness.

The Mine Act requires mines that receive POV notices to be issued withdrawal orders –effectively ceasing their mining operations – for all S&S violations. After no mine was placed on POV for the first 33 years after the Mine Act went into effect, these POV notices mark MSHA’s significantly enhanced and aggressive enforcement activities.

Joseph A. Main, Assistant Secretary of Labor for Mine Safety and Health, indicated “MSHA’s new POV rule, which we will vigorously enforce, enhances protections for miners and shifts the responsibility for monitoring compliance and taking action to prevent POV enforcement actions to the operator.” Among other things, the new rule shifted responsibility for monitoring compliance to the mine operator, and mandated that operators submit corrective action programs to proactively address issues that could lead to a POV.

Mine operators under this new age of MSHA enforcement need be ever vigilant in monitoring its compliance status and ensuring employees are properly trained to reduce injury rates.

By James L. Curtis and Craig B. Simonsen

The Bureau of Labor Statistics (BLS) recently released its preliminary “Census of Fatal Occupational Injuries.”  The findings show an increase of twenty-three percent in the oil and gas extraction industries, a fourteen percent increase in the mining sector, and a five percent increase in the construction industry.

The BLS Report indicates that 767 workers were killed as a result of violence and other injuries by persons or animals, including 463 homicides and 225 suicides. The total number of fatal work injuries after being struck by objects or equipment increased by seven percent.

As noted above, the number of fatal work injuries in the construction sector increased five percent in 2012. BLS says in its news release that “construction accounted for the highest number of fatal work injuries of any industry sector in 2012.”

Fatal work injuries in the mining sector increased fourteen percent from 2011. The number of fatal work injury cases in oil and gas extraction industries rose in 2012 by twenty-three percent — which represents a series high. This may be attributed to the increasing numbers of employees working in fracking operations. Fatal work injuries in support activities for mining increased nine percent.

In response to the BLS Report, Secretary of Labor Thomas E. Perez said in a press release that “[w]e can and must do better. Job gains in oil and gas and construction have come with more fatalities, and that is unacceptable…. Employers must take job hazards seriously and live up to their legal and moral obligation to send their workers home safe every single day. The Labor Department is committed to preventing these needless deaths, and we will continue to engage with employers to make sure that these fatality numbers go down further. “ Emphasis added.

Employers in these industries, oil and gas, construction, and mining, need to be mindful of OSHA’s and MSHA’s enhanced monitoring and inspection activities. Take steps to insure that your safety and health programs, policies, and training are up-to-date and are being rigorously implemented. Be sure to have a plan in-place for when an agency inspector does come calling, so that the company is protected and any citations and liabilities are minimized.

By Brent I. Clark, Meagan Newman, and Craig B. Simonsen

Mine operators and employee interveners lost their joint appeal to U.S. Seventh Circuit Court of Appeals — where the Court agreed with the Commission that MSHA acted within its statutory and constitutional authority to issue document demands for employee medical and personnel records. Big Ridge, Inc., et al., v. Federal Mine Safety and Health Review Commission, et. al., __ F.3d __, Nos.12-2316 & 12-2460 (7th Cir. 2013).

In the underlying case, the Secretary of Labor issued citations alleging violations of 30 C.F.R. § 50.41. Section 50.41 states that:

Upon request by MSHA, an operator shall allow MSHA to inspect and copy information related to an accident, injury or illnesses which MSHA considers relevant and necessary to verify a report of investigation required by §50.11 of this part or relevant and necessary to a determination of compliance with the reporting requirements of this part.

The Administrative Law Judge upheld the MSHA citations and orders upon finding that the operators had violated section 50.41 when they failed to cooperate with a 30 C.F.R. Part 50 audit, by refusing to provide the requested information.  The Commission agreed with the ALJ.

On appeal, the mine operators and miner employees challenged the document demands on several grounds. They contended:

  1. That MSHA did not have the authority to require mine operators to comply with document demands for employee medical and personnel records under the Act or relevant regulations;
  2. That the relevant regulation, 30 C.F.R. § 50.41, is not a reasonable interpretation of the Mine Safety Act which was not properly promulgated;
  3. That the document demands infringed the mine operators’ Fourth Amendment right not to be searched without a warrant;
  4. That the demands violated the miners’ Fourth Amendment privacy rights in their medical records;
  5. That the daily penalties MSHA imposed for failure to comply violated the mine operators’ Fifth Amendment right to due process of law; and
  6. That the demands conflict with a variety of other federal and state laws.

In disposing of all of these contentions, the Court agreed with the Commission that MSHA acted within its statutory and constitutional authority both in demanding information that would permit MSHA to verify the accuracy of mine operators’ injury reports and in issuing citations and monetary penalties when mine operators refused to comply. Specifically, the Court found that “although the Mine Safety Act does not expressly refer to MSHA’s document review power as the power to issue an ‘administrative subpoena,’ the authority the Act confers upon MSHA amounts to an administrative subpoena in substance.”

This case again illustrates the need for employers to carefully interface with MSHA as it interacts with the Company. The need to protect the Company from citations and excessive penalties, and the necessity of protecting the Company’s employees’ privacy, demand cautious, measured responses.

By Brent I. Clark, Meagan Newman, and Craig B. Simonsen

The DC Circuit has just remanded a case to the Mine Safety and Health Review Commission because the Commission failed to explain its departure from its own precedent.

Failure to Contest Proposed Penalties Not Fatal

In this case the mine operator had contested an MSHA citation, but not the related proposed penalties. In Lone Mountain Processing, Inc., 33 FMSHRC Page 2373, No. Kent 2011-1153 (October 11, 2011), the Commission had decided that “Lone Mountain has failed to establish good cause for reopening the proposed penalty assessments.”

The DC Circuit of Appeals, in its remand, notes that “in past orders granting motions to reopen, the Commission has repeatedly stated that the timely challenge to a citation gives a ‘clear’ indication that a mine operator also ‘intend[s] to contest the proposed penalty for that citation’.”  The Court is insistent that the Commission “must address precedent directly on point.”