The Department of Labor (“DOL”) announced a notice of proposed rulemaking on August 29, 2023, concerning who employees can authorize to act as their representative during Occupational Safety and Health Administration (“OSHA”) workplace inspections.
MSHA has published the proposed silica rule on their website. Among other things, MSHA proposes to set the permissible exposure limit of respirable crystalline silica at 50 micrograms per cubic meter of air (µg/m3) for a full shift exposure, calculated as an 8-hour time-weighted average for all miners.
On January 4, 2023, the White House Office of Management and Budget (OMB) released the 2022 Unified Regulatory Agenda and Regulatory Plan (Fall 2022 Agenda) that reports on all planned rulemaking actions of administrative agencies. According to the Fall 2022 Agenda, the Department of Labor (DOL), Occupational Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA) are pursuing a long list of thirty regulatory actions, similar to the Spring 2022 agenda, including the addition of a rule regarding Procedures for Use of Administrative Subpoenas in OSHA investigations.
On May 3, 2022, OSHA held a stakeholder meeting regarding the development of a nationwide occupational heat standard to prevent heat injuries and illness. The meeting featured opening remarks by Assistant Secretary of Labor, Doug Parker, Secretary of Labor, Marty Walsh, and Deputy Assistant Secretary of Labor, Jim Frederick.
On October 27, 2021, OSHA issued an Advance Notice of Proposed Rulemaking (ANPRM) on Heat Injury & Illness Prevention in Outdoor and Indoor Work Settings. 86 Fed. Reg. 59309 (Oct. 27, 2021). As announced in the ANPRM, OSHA is seeking information about the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related injury and illness. Comments on the Proposed Rule must be submitted by December 27, 2021.
Because outdoor and indoor work settings that lack adequate climate-controlled environments pose a risk of hazardous heat exposure for workers, the proposed rule applies to both indoor and outdoor work environments.
While federal OSHA has not implemented new regulations for COVID-19, the push by some individual states to do so continues. Most recently, California passed a law that sets up new COVID-19 requirements for employers in the state, especially around providing notices and reports of workplaces exposures.
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.
After a three-judge panel of the US Court of Appeals for the DC Circuit rejected an AFL-CIO request for an order requiring an emergency OSHA COVID-19 regulation, the union has petitioned for re-hearing by the entire Court. The rehearing request is pending.
MSHA’s much-contested new rule is now in effect and being enforced even while a court challenge continues. MSHA has tried to clarify the rule, but many questions remain unanswered.
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.