The US Court of Appeals for the DC Circuit is currently considering a request by mine worker unions to require MSHA to create an emergency COVID-19 regulation. The parties have all finished submitting their briefs and now await a ruling. Husch Blackwell’s mine safety and health team represented national industry associations in filing an amicus (“friend-of-the-court”) brief to describe industry protections against the virus.

The United Mine Workers of America and the Steelworkers filed the initial petition, arguing that a “catastrophe” is looming, with COVID-19 presenting a “grave danger to miners” that requires MSHA to issue an Emergency Temporary Standard (ETS) under the Mine Act. The union brief heavily emphasized close working conditions in underground coal mining, a small percentage of today’s mining industry. It did not identify any evidence of actual COVID-19 infections spreading uncontrolled at mines.

Industry describes a robust response to protect workers

In response, the brief prepared by Husch Blackwell on behalf of national trade associations detailed extensive efforts throughout the industry to develop and implement programs that protect workers from COVID-19. The associations — including the National Mining Association, National Stone Sand and Gravel Association, Portland Cement Association, and Industrial Minerals Association-North America — described how they convened dozens of member companies over several months to collaborate on response efforts, as well as how individual companies adopted extremely robust protective programs.

The brief attached nine signed statements from industry and company leaders describing these efforts. Some described health and safety programs that successfully detected a small number of cases in which workers were exposed to COVID-19 outside of work. According to the declarations, the workplace policies and protocols in place prevented the virus from spreading among co-workers. The industry brief also explained that the vast majority of the industry has been at work throughout the pandemic and that most sites have been readily able to adapt to workplace social distancing, symptom screening, hygiene, and other protective protocols.

In its brief, MSHA argued that mines “are among the most heavily regulated workplaces in America,” with several mandatory inspections of each mine every year. MSHA said that it already has adequate regulations and enforcement powers to protect miners from COVID-19, including requirements to conduct examinations of each workplace for hazards, authority to shut down mines presenting imminent dangers to miners, and the ability to investigate miner hazard complaints.

The mine worker petition echoes a similar lawsuit in the DC Circuit by the AFL-CIO, which asked for an emergency OSHA COVID-19 regulation. The Court denied the request, deferring to OSHA’s expertise and determination that the agency had the tools it needs to protect workers.

The MSHA case is now under consideration by the Court, which is expected to rule soon. The briefs in the case are below: