The Mine Safety and Health Administration (“MSHA”) has declined to issue an Emergency Temporary Standard (“ETS”) to address pandemic safety for miners. MSHA determined that issuance of an ETS was unnecessary for COVID-19 because MSHA’s existing health and safety standards allow MSHA to require mine operators to take action to abate COVID-19 health hazards in mines.

Recently the United States Court of Appeals for the District of Columbia Circuit rejected a union’s request for the Court to compel MSHA to issue an ETS. On the legislative path, a bipartisan group of House members are advocating legislation to require MSHA to issue an ETS to address pandemic safety for miners. The proposed legislation is called the “Covid-19 Mine Worker Protection Act.”

Sponsors of the “Covid-19 Mine Worker Protection Act” include Matt Cartwright (D-PA) and David McKinley (R-WV). In a recent press release, Representative Matt Cartwright stated: “The COVID-19 pandemic increases the need for stronger safety protections for these miners. This bipartisan bill would ensure reasonable workplace safety standards to protect miners from COVID-19 on the job and ensure miners can continue their essential work without fear of further endangering themselves or their families.” According to Representative McKinley’s press release, the legislation is supported by the United Mine Workers of America, among others.

A Senate version of the “Covid-19 Mine Worker Protection Act” was introduced earlier this year by Senator Joe Manchin (D-WV). Among other requirements, that Senate version would require MSHA to issue an ETS within 7 days of enactment to protect miners from COVID-19 exposure, and to issue a permanent comprehensive infectious disease standard within 2 years. Senator Manchin has conveyed that he “will keep working to include this language in future COVID-19 funding packages to protect our miners during this global health crisis.”

While MSHA is presently enforcing COVID-19 safety through its existing safety standards, operators should know that miners are more likely than ever to raise concerns about COVID-19 safety in the workplace. Mine operators can avoid potential issues by providing the appropriate levels of attention to COVID-19 as they do all workplace health and safety issues.