September 23, 2021

Volume XI, Number 266

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Executive Order on COVID-19—Vague Regarding MSHA

On January 21, 2021, President Joseph R. Biden Jr. signed an executive order directing the U.S. Occupational Safety and Health Administration (OSHA) to take certain actions to address worker safety and health with regard to COVID-19. The executive order says much less about what the U.S. Mine Safety and Health Administration (MSHA) should do with respect to mining worksites, largely leaving it to MSHA to set its own course in addressing the pandemic.

While the executive order directs both OSHA and MSHA to consider whether an emergency temporary standard (ETS) is necessary, it sets only a specific issuance date for OSHA to follow. According to the executive order, OSHA is to issue its ETS by March 15, 2021. With respect to any ETS to be issued by MSHA, the executive order simply says that MSHA is to do so “as soon as practicable.”

The executive order also instructs OSHA to issue revised guidance to employers within two weeks of the date of the order. The executive order does not give MSHA a similar mandate.

MSHA likely will issue a COVID-19 ETS covering coal and metal/nonmetal mines in the near future. The executive order’s lack of specific direction to MSHA merely gives the agency more leeway in how to go about it. This nevertheless is a notable divergence in approach that the White House is taking towards the two agencies.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 27
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About this Author

William Doran, Ogletree Deakins Law Firm, Washington DC, Labor and Employment Litigation Attorney
Shareholder

Bill Doran’s practice is concentrated in safety and health law and litigation.

Bill represents and advises companies with respect to issues arising under Federal and State Safety and Health Statutes. He represents companies in accident investigations, special investigations, audits and discrimination investigations conducted by OSHA, MSHA, and state agencies. He also represents companies in litigation before the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission and the federal courts.

202-263-0246
Margaret S. Lopez, Ogletree Deakins, mining companies lawyer, gravel industries attorney
Office Managing Shareholder

Margo Lopez is the Managing Shareholder of the Washington, D.C. office and a long time workplace safety lawyer representing mining companies in the coal, metal, stone, sand and gravel industries. She is a highly successful litigator and regularly presents company and industry cases before Administrative Law Judges, Federal Review Commissions and the United States Court of Appeals. In a recent high profile Court of Appeals case, Margo effectively saved the mining industry from severe limitations on its rights to manage its workforce, involving potentially millions of...

202-263-0244
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