Workplace Safety and Health News Alert
UMWA, et al. Seeks Issuance of Emergency Temporary Standard on COVID-19 from MSHA through Mandamus Action in the U.S. Court of Appeals for the D.C. Circuit
June 25, 2020
The United Mine Workers of America, International Union and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC filed a petition for a writ of mandamus on June 15, 2020, to require the Mine Safety and Health Administration (“MSHA”) to take action in response to COVID-19. Attachment 1 The petition invokes the extraordinary relief of mandating that the Assistant Secretary issue emergency temporary standards that would become effective on passage. To date, MSHA has deferred to the Occupational Health and Safety Administration (“OSHA”) to provide guidance to various industries in consultation with the Department of Health and Human Services (including CDC, NIOSH, the Centers for Medicare and Medicaid Services, and the Food and Drug Administration) to mention a few.
It is anticipated that several national trade associations will file Amicus Briefs against the mandate of an ETS which does not provide for notice or public comment before it becomes effective. The briefs are due on June 26, 2020, and reply briefs are due on June 29, 2020, based on the expedited briefing schedule.
The AFL-CIO brought a similar action for mandamus against OSHA recently in the D.C. Circuit Court. Attachment 2 That effort ended with a three-judge panel rejecting the petition because “[i]n light of the unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure the employers are maintaining hazard-free work environments, see 29 U.S.C. § 654(a), the OSHA reasonably determined that an ETS is not necessary at this time.” Attachment 3 A Petition for Re-Hearing En Banc of that case was filed on June 18, 2020. To date, no action appears to have been taken by the Court in response to the filing.
The petition of the UMWA, et al. seeks to require MSHA to issue an ETS under § 101(b)(1) of the Federal Mine Safety and Health Act (the “Mine Act”). Section 101(b)(1) permits the issuance of an ETS if the agency “determines (A) that miners are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful, or to other hazards, and (B) that such emergency standard is necessary to protect miners from such danger.”
The issuance of an ETS is an extraordinary step to which agency deference is applied. Given the ever-evolving nature of COVID-19, guidance documents applicable to specific industries, locations and circumstances, along with State and local guidance, have provided flexibility for the workplace safety and health agencies to address the myriad situations adequately.
Moreover, MSHA and miners have a number of enforcement tools and rights that can be utilized to protect the safety and health of miners as circumstances require. Unlike OSHA, MSHA has warrantless inspection power, mandatory inspections, and grants miners’ the right to refuse unsafe work, in addition to withdrawal authority for conditions or practices that cause an imminent danger (“a condition or practice which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated” 30 U.S.C. § 802(j)) regardless whether a standard has been violated, to name but a few. Moreover, MSHA has withdrawal authority without need of a pre-deprivation hearing, unlike OSHA which must seek injunctive relief under § 13(a) of the OSH Act, 29 U.S.C. § 652(b), from the appropriate Federal or State Court (in State Plan States) before any withdrawal action can be taken.
Some examples of the areas the petition by the UMWA et al. seeks to address in the requested ETS are:
- Additional disinfecting between shift for toilets, sinks, showers, and lunch areas
- Disinfecting all equipment before use
- Suspending the use of hand scanners
- Providing miners with disinfecting spray
- Social distancing in mantrips or elevators
Most of the areas where regulation is sought are common sense practices that all businesses are asked to adhere to and employers in all industries have already implemented to keep their valuable workforce from contracting or spreading COVID-19. Adding a regulatory and compliance burden above what every responsible employer is already doing and required to do is not warranted in the context of the daily fluidity of the COVID-19 pandemic and the ever-changing landscape of the virus.