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.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.