Posted on 11/23/2021

MSHA’s Stance & Position On the Vaccine Mandate – Details

As part of an unprecedented national effort to decrease the spread of Covid-19, the Biden administration passed two highly controversial measures — Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees and the “New Vaccination Requirement for Employers With 100 or More Employees.”

Large employers covered under the Occupational Safety and Health Administration (OSHA) were given a choice to either ensure workers are fully vaccinated by January 4, 2022, or are tested weekly. OSHA was charged with managing the mandate, which it is doing via its COVID–19 Vaccination and Testing; Emergency Temporary Standard (ETS).

But the mandate — which went into effect November 5, 2021, and could impact ~84 million workers — was swiftly challenged in court by several organizations and states. Indeed, as of this writing, a Federal Court of Appeals has placed the mandate on hold, labeling it “fatally flawed” and “staggeringly overbroad.”

Across the country, many large employers have already done the legwork to create internal policies aimed at compliance with the new OSHA requirements. However, the Mine Safety and Health Administration (MSHA) isn’t beholden to OSHA decisions. Distinct from OSHA, MSHA has a specific mission “to protect the safety and health of the nation’s miners.”

As a separate agency, MSHA has its own rules and viewpoints. The mining agency recently put out information regarding its official stance on the vaccine mandate, which may put OSHA’s directive under even more of a microscope.

MSHA’s Official Statement

News of Biden’s impending mandates was put out back in early September, but MSHA made very little comment for weeks afterward. Then, at a September 29 stakeholder conference, the agency’s Deputy Assistant Secretary for Policy Jeanette Galanis dropped the news that no, MSHA wouldn’t be following suit. There would be no vaccine requirement for mining employers under MSHA’s oversight.

Galanis, appointed by Biden on February 1, 2021, made it clear that the President’s directive to OSHA didn’t apply to MSHA. After weighing all considerations, the mining agency chose not to issue its own Covid ETS. Citing the legal protection offered under the Federal Mine Safety and Health Act of 1977, Galanis noted that the agency would rely on its own criteria for mitigating Covid spread.

In fact, MSHA had updated its guidelines early in the year to ensure all “mine operators at coal, metal and nonmetal mines” had Covid protection plans in place.

What MSHA is doing instead of an ETS

MSHA’s website features a Coronavirus page which posts cautious language outlining the agency’s position to the public:

“As long as miners continue to work at a mine, MSHA will continue to perform its statutorily-required essential functions within the parameters of the President’s and Department’s guidance, as well as that of the Centers for Disease Control and Prevention (CDC).”

As noted by Safety+Health, mining employers’ plans must incorporate best practices such as conducting thorough workplace hazard assessments and identifying protocols to limit spread. MSHA also asks employers to adopt safety policies that will keep infected or possibly infected workers “separated” or “sent home.”

With the nation currently divided regarding virtually every aspect of the Covid pandemic, MSHA took the extra precaution of asking employers to “implement anti-retaliation measures for miners who raise concerns” about the highly-transmissible disease.

What MSHA’s decision means for OSHA

MSHA is certainly not taking the threat of Covid spread lightly but it does currently draw the line at requiring mandatory vaccinations for workers. Its decision puts further scrutiny on the underlying basis for OSHA’s own ETS, which relies heavily on phrasing in Section 6(c)(1) of the OSHA Act.

The OSHA act cites that an ETS is appropriate if the Secretary of National Consensus Standards “determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”

In line with the above language, and as stated in the Department of Labor’s webinar on the subject, OSHA’s ETS was indeed issued to “address the grave danger of COVID-19 in the workplace.” The webinar went on to state that the ETS’s secondary purpose is to “preempt state and local laws that interfere with the employer’s authority to require vaccination, facing covering, or testing.”

MSHA’s stance seems to indicate its disagreement that Covid poses a “grave danger” threat that demands an ETS. With no order forcing the agency to adopt a mandatory vaccine stance, MSHA seems eager to avoid such a measure, which would almost certainly face instant legal challenges and cause workplace disruptions.

Employers with possible dual obligations

Some large employers operate businesses with aspects that fall under both OSHA and MSHA. Thus it is essential for organizations to determine if they are affected in any way by the OSHA ETS or not.

When in doubt, it’s advisable to contact representatives of both agencies and try to get their responses in writing. In the past, there have been individual cases where courts and commissions had to get involved to determine which agency held jurisdiction over certain companies.

Also, keep in mind that not all employers with 100 or more workers are considered “covered employers” under OSHA’s policies. As described in All About OSHA, “The OSH Act covers most private sector employers and their workers, in addition to some public sector employers,” but there are exceptions apart from mining businesses.

Are MSHA changes coming?

On November 12, the Biden administration announced the nomination of Christopher Williamson to fill the role of MSHA’s new assistant secretary. Williamson is backed by the United Mine Workers of America, whose International President Cecil Roberts is pushing for Senate confirmation, attesting to Williamson’s “in-depth understanding of what it takes to keep miners safer and healthier at work is unmatched.”

It remains to be seen whether Williamson will be confirmed or how long that might take. The appointment seems likely to proceed, after which it is a safe bet that MSHA will re-evaluate its “interpretations” of existing standards.

In the meantime, MSHA continues to offer specific guidance to miners and mine operators regarding actions they should take to keep safe. Internally the agency is also applying safety protocols for its workers to continue essential functions such as “mandatory inspections, serious accident investigations, and investigations of hazard complaints (imminent danger or serious in nature).”