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.

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 well as the Mine Safety and Workplace Safety and Health blogs. Important information for employers is also available via the firm’s webinar and podcast programs.