Seyfarth Synopsis: On January 21, 2021, President Biden directed MSHA to consider whether COVID-19 emergency temporary standards (“ETS”) are necessary for coal and metal/non-metal mines, and if so, to issue them “as soon as practicable.”  While MSHA has not announced an ETS, it recently published new guidance regarding COVID-19 worker safety in mines, “Protecting Miners: MSHA Guidance on Mitigating and Preventing the Spread of COVID-19.”

MSHA’s materials echo (i.e., basically restate) OSHA’s January 29, 2021 revised guidance “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which we blogged about here.  MSHA’s guidance highlights steps operators and miners should take to ensure safe and healthy workplaces, and recommends that operators implement COVID-19 prevention programs, which MSHA – like OSHA – opines “are the most effective way to mitigate the spread of COVID-19 at work.”  MSHA lists 15 elements that effective plans should include:

1. Assign a mine coordinator;
2. Identify where and how workers might be exposed to COVID-19 at work;
3. Identify measures that will limit the spread of COVID-19 in the workplace, including hazard removal, engineering controls, administrative controls, PPE, and other measures;
4. Consider protections for miners at higher risk for severe illnessthrough supportive policies and practices;
5. Educate and train miners on COVID-19 policies and procedures using accessible formats and in a language they understand;
6. Instruct miners who are infected or potentially infected to stay home and isolate or quarantine;
7. Minimize negative impacts of quarantine and isolation on workers;
8. Isolate miners who show symptoms at work;
9. Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the mine environment;
10. Provide guidance on screening and testing;
11. Record and report COVID-19 infections and deaths;
12. Implement protections from retaliation and an anonymous process for miners to voice concerns about COVID-19-related hazards;
13. To the extent possible, make a COVID-19 vaccineor vaccination series available at no cost to all eligible employees;
14. Treat vaccinated workers the same as those who are not; and
15. Consider other applicable MSHA standards.

Though MSHA does not currently have COVID-19 regulations, we understand the agency is still considering whether an ETS is necessary.  If MSHA decides to promulgate an ETS, a number of these guidance provisions will likely be part of that standard.  Consequently, operators should evaluate their compliance with these guidelines now to prepare for any forthcoming MSHA ETS.