After a court rejected MSHA’s 2018 changes to its metal/non-metal workplace examination rule, tomorrow (Monday) MSHA will publish an announcement that reinstates the 2017 rule. The notice serves to “recognize the legal effect of the court order” and revise the rule to comply. Here are the key takeaways.
The MSHA notice explains that, effective immediately, the two changes made in 2018 to make the rule more workable are being removed from the regulation. Those changes allowed examinations to occur “as miners begin” work in an area and allowed conditions to be corrected “promptly” without being documented.
Key features of today’s announcement:
- Exams before work begins. Workplace exams must take place “at least once each shift before miners begin work in that place for conditions that may adversely affect safety or health.” This removes language that had allowed exams to occur either at the beginning of the shift or as miners began work. Now, exams must occur before beginning work in each area. While the “as miners begin work” language presented its own challenges for being vague, it provided some flexibility.
- Documenting all conditions. All conditions that “may adversely affect the safety or health of miners” must now be documented. This replaces the provision that only required documenting conditions that were not corrected promptly. Now, all conditions found must be documented (and their correction documented, too). The challenge here is potentially a great volume of documentation for conditions that are easily and quickly corrected, such as an extension cord lying on the ground that simply must be picked up and put away.
- Effective immediately but with a 90-day rollout. The 2017 rule takes effect immediately, but “MSHA will use the first 90 days to fully implement” the rule. That time will feature informational stakeholder meetings, as well as in-personal compliance and technical support to help companies and miners comply. MSHA believes that its 2018 rule rollout went very smoothly and successfully, and it intends to repeat that process.
- Compliance assistance. MSHA will also develop and circulate compliance assistance materials, including sharing with the public the materials that it will use to train its inspectors.
But wait, there’s more!
MSHA’s announcement may make it seem as if the rule’s fate is finally settled, but that’s far from the truth. In fact, the U.S. Court of Appeals for the Eleventh Circuit just lifted a stay that had paused the litigation challenging the 2017 rule. That case was waiting for the end of litigation over the 2018 rule. If industry groups press forward with their rulemaking challenge, the fate of the 2017 rule itself could still take some time to resolve. In the meantime, though, MSHA’s current notice is intended to provide clear guidance on how to comply with the rule that’s on the books – at least for now.
If you have any questions about how to comply with the workplace exam rule, please contact a member of the Husch Blackwell MSHA defense team: