COVID-19 pandemic: Labor unions sue MSHA to force an emergency temporary standard

Washington — The United Mine Workers of America and the United Steelworkers are suing the Department of Labor and the Mine Safety and Health Administration in an effort to compel MSHA to issue an emergency temporary standard on infectious diseases amid the ongoing COVID-19 pandemic.

The labor unions filed a joint emergency petition June 16 in the U.S. Court of Appeals for the District of Columbia Circuit, alleging that “if MSHA fails to issue an ETS to address this unprecedented crisis, the life and health of tens of thousands of miners will be placed in grave danger as a result of the miners’ increased exposure to COVID-19.”

As mining activities resume and more miners return to work, “person-to-person contact in the nation’s mines will increase and health experts predict that the already shocking number of infections and deaths among workers will worsen,” UMWA and USW claim, adding that the need for an emergency temporary standard is especially urgent given the inconsistency of reopening and operating standards among mines.

“Working in a mine is very different from working in any other workplace,” UMWA President Cecil Roberts said in a press release. “The air is circulated throughout the mine, meaning an airborne disease like COVID-19 can spread among workers who are far removed from one another. A 6-foot social distance is meaningless in an underground environment.”

UMWA had petitioned MSHA to issue an infectious diseases standard on two occasions. In an April 14 letter responding to the initial attempt – a UMWA letter sent March 24 – agency administrator David Zatezalo writes that, “at present, the risks miners face from exposure to COVID-19 are quite similar to the risks encountered by other Americans. The steps miners should take to protect themselves are the same precautions the general public must take.”

Responding to the petition, a DOL spokesperson told Safety+Health: “The department is committed to protecting American workers during the pandemic, and MSHA has been working around the clock to that end. The department is confident it will prevail in this counterproductive lawsuit.”

Mike Wright, director of health, safety and environment at USW, told S+H the mine cage, or elevator system, is one site where COVID-19 can spread. The system, “under normal conditions,” is “about as far from social distancing as you can get. People are literally packed in. You get so many people that you can’t move. People’s faces are literally inches away from each other and their bodies are just jammed in.

“It certainly is possible to have good infection control systems in mines – we’ve seen it. But it’s also common to not do anything, and that’s why we need an MSHA standard to compel mine operators to do what everybody agrees is what we need to do to stop the spread of the virus.”

Wright also offered a differentiation between the lawsuit against MSHA and a May 18 lawsuit – filed in the same court – in which the AFL-CIO called on DOL and OSHA to issue an emergency temporary standard on infectious diseases. The court on June 11 rejected the AFL-CIO lawsuit.

“That may sound like it’s a futile effort given the ruling in the OSHA case,” Wright said, “but in the OSHA case, the court explicitly referred to OSHA’s General Duty Clause as one of the tools that OSHA has that made it unnecessary for the court to compel them to set a specific standard. MSHA has no General Duty Clause; MSHA can only enforce specific standards, and so that really distinguishes the two situations.”

In May, Sen. Joe Manchin (D-WV) introduced the COVID-19 Mine Worker Protection Act (S. 3710) – bipartisan legislation that, among other provisions, would require MSHA to issue within seven days of enactment an emergency temporary standard on infectious diseases, followed by a final rule.

At press time, the bill remained in the Senate Health, Education, Labor, and Pensions Committee, where it was referred May 13.