By: Laura E. Beverage
On May 14, 2020, Senator Joseph Manchin, III (D-WV), along with co-sponsors, Richard Durbin (D-IL), Timothy Kaine (D-VA), Shelley Moore Capito (R-WV), Douglas Jones (D-AL), Sherrod Brown (D-OH), Mark Warner (D-VA) and Robert Casey (D-PA), introduced a Bill to require the Secretary of Labor to promulgate Emergency Temporary Standards (“ETS”) within 7 days of passage to protect miners in coal or other mines from occupational exposure to COVID 19 (also referred to SARS-CoV-2). ETS are authorized under § 101(b) of the Federal Mine Safety and Health Act, 30 U.S.C. § 811(b). The emergency rules become immediately enforceable, if enacted, without notice and comment rulemaking. They remain in effect for 24 months at which time they expire, or the agency conducts notice and comment rulemaking before the expiration date. The proposed Bill requires that permanent standards be enacted before the expiration of 24 months of passage of the Bill “to protect miners from occupational exposure to infectious pathogens, including novel pathogens.”
If passed, the proposed legislation would require standards for operators to provide miners with “necessary” personal protective equipment (“PPE”), and medical or other supplies to reduce miners’ exposure to COVID-19 in the workplace.
The ETS would also require the inclusion of Centers for Disease Control (“CDC”), National Institute of Occupational Safety and Health (“NIOSH”), and Occupational Safety and Health Administration (“OSHA”) guidelines to prevent transmission of “infectious agents.”
In addition, provisions for recording and reporting all work-related COVID-19 cases and deaths would be required to supplement 30 C.F.R. Part 50.
The proposed Bill would require that the ETS include anti-discrimination polices to protect miners:
- Who report a COVID-19 illness to a local, state, or federal agency; or
- Who have a good faith concern about a workplace infectious disease hazard; or
- Who seek assistance from the operator or a local, state, or federal agency with a report of illness; or
- Who voluntarily use PPE with a higher level of protection than that which has been provided by the operator so long as it does not create a hazard.
The proposal for the ETS also requires that the Secretary of Labor, through the Assistant Secretary for Mine Safety and Health and in coordination with the CDC and NIOSH to:
- Collect and analyze case reports that include information on the work status, occupation, and industry classification of an individual to identify and evaluate the extent, nature and source of COVID-19 among miners and the prevalence of COVID-19 among miners with previous symptoms of pneumoconiosis;
- Investigate individual cases of COVID-19 among such miners to evaluate the source of exposure and adequacy of infection and exposure control measures;
- Provide regular periodic reports on COVID-19 among such miners to the public; and
- Make recommendations on needed action or guidance to protect such miners from COVID-19.