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MSHA Unlikely to Issue Emergency Temporary Standard Requiring COVID-19 Vaccinations or Testing

In a September 28, 2021 Mine Safety and Health Administration (MSHA) stakeholder meeting, Deputy Assistant Secretary for Policy Jeannette J. Galanis stated that MSHA does not intend to issue an emergency temporary standard (ETS) requiring COVID-19 vaccinations or testing of miners. Instead, MSHA will continue to rely on its COVID-19 guidance to mine operators and existing statutory and regulatory enforcement capabilities.

Galanis outlined several reasons for the agency’s decision. First, President Biden’s September 9, 2021, plan calls on the Occupational Safety and Health Administration (OSHA) to issue an ETS requiring employers with 100 or more workers to mandate vaccinations or weekly COVID-19 testing. It does not mention MSHA or mine sites. Second, Galanis commented that the Federal Mine Safety and Health Act of 1977 includes stronger enforcement authority for MSHA than OSHA has under the Occupational Safety and Health Act of 1970, citing MSHA’s authority to issue imminent danger closure orders under Section 107(a) of the Mine Act. Third, MSHA confirmed that it has issued approximately 370 citations related to COVID-19 hazards at mine sites since March of last year. MSHA also confirmed that the agency has no agreement in place with OSHA that would make OSHA’s anticipated ETS applicable to mining operations.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 274
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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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