iAs the COVID-19 pandemic continues, the battle over when or if employers should be liable for personal injuries arising from coronavirus exposure allegedly caused during employment lurks on the horizon.
The United States Court of Appeals for the D.C. Circuit recently rejected a union’s request for the Court to compel the U.S. Department of Labor’s Mine Safety and Health Administration (“MSHA”) to issue an Emergency Temporary Standard (“ETS”) for infectious diseases. In Re: United Mine Workers of America.
Like the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), which develops and enforces safety and health rules for workplaces, MSHA is tasked with developing and enforcing workplace safety and health rules for U.S. mines. Both agencies are within the U.S. Department of Labor.
MSHA must provide an ETS when miners are exposed to grave danger from exposure to harmful substances, agents or other hazards if the ETS is necessary to protect the miners from the grave danger. MSHA denied the union’s request for an ETS for COVID-19, which the union then challenged in federal court. The U.S. Court of Appeals for the D.C. Circuit ruled that it would not compel MSHA to issue the ETS finding it was not unreasonable for MSHA to determine that an ETS was unnecessary.
MSHA determined that issuance of an ETS was unnecessary for COVID-19 because MSHA’s existing health and safety standards allow MSHA to take require mine operators to take action to abate COVID-19 health hazards. MSHA assured the Court that its existing standards impose COVID-19 related duties on mine operators. MSHA shared that it is issuing safety citations to operators for COVID-19 health and safety violations.
As the pandemic rages on throughout different parts of the country not previously hard hit at the onset of the pandemic, miners are more likely than ever to raise concerns about COVID-19 in the workplace and may even refuse to work if they do not believe the mine operator is taking all necessary precautions to protect them against the COVID-19 hazard. Section 105(c) of the Mine Act prohibits mines from discriminating or retaliating against miners, miner representatives and applicants for employment for engaging in safety and health activities, including identifying hazards, requesting or participating in MSHA inspections, and refusing to engage in unsafe acts. These conditions, coupled with the assurances from MSHA regarding COVID-19 related enforcement, are likely to lead to an uptick in MSHA’s COVID-19 enforcement activity.
This sharpened awareness of COVID-19 health and safety issues is not unique to mines. The D.C. Court of Appeals noted that MSHA’s ETS provision tracks OSHA’s ETS provision. Earlier in June, the D.C. Court of Appeals struck down the AFL-CIO’s petition to compel OSHA to issue an ETS for COVID-19. The D.C. Circuit stated that OSHA’s decision not to issue an ETS was entitled to considerable deference. The Court also noted that OSHA had other existing statutory and regulatory tools at its disposal to ensure that employers are protecting employees against the COVID-19 hazard in the workplace.
While mine operators and employers often welcome employee participation as part of ensuring a safe workplace for all, it is important to be mindful that COVID-19 related issues are likely, at least for now, to be scrutinized by MSHA and OSHA. Mine operators can avoid potential issues by providing the appropriate levels of attention to COVID-19 related issues as they do to all other workplace health and safety issues.
