COVID-19 pandemic: ‘More action is needed’ from MSHA, DOL inspector says

Washington — Although the Mine Safety and Health Administration has taken steps to protect workers in the mining industry during the COVID-19 pandemic, “more action is needed” from the agency as evolving challenges mount, the Department of Labor Office of Inspector General concludes in an audit report.

Released July 24, the report resulted from a DOL OIG analysis of MSHA guidance, various states’ executive orders and other related documents, as well as an assessment of interviews with MSHA officials and union representatives.

DOL OIG issued two recommendations to MSHA:

• Monitor the potential backlog of suspended and reduced enforcement activities and develop a plan to manage the backlog once full operations resume.
• Monitor COVID-19 outbreaks at mines and use that information to reevaluate the agency’s decision not to issue an emergency temporary standard related to COVID-19.

MSHA administrator David Zatezalo states in a written response to the audit report that he agrees with the recommendations and notes that “MSHA currently does not have a backlog of statutorily mandated enforcement activities and the agency anticipates meeting such requirements for [fiscal year] 2020.”

A webpage detailing the agency’s response to the pandemic states that “MSHA will continue to perform its essential functions, including mandatory inspections, serious accident investigations and investigations of hazard complaints (imminent danger or serious in nature).” However, DOL OIG reports that the agency, as of May, has suspended five categories of enforcement actions – including its incident reduction program – while seriously reducing activity in 13 other categories.

Additionally, about 100 of 750 agency inspectors self-identified as high risk for severe complications from COVID-19, DOL OIG reports, prompting them to work remotely or take leave. Although this measure accounts for these inspectors’ safety and health, it may contribute to putting miners at increased risk because the remaining inspectors “must work overtime to cover those gaps” while identifying potential hazards.

MSHA has released voluntary guidelines intended to protect miners during the pandemic, but the agency “is facing considerable pressure from mining unions, Congress, and others to exercise its authority and issue an emergency temporary standard,” the report states.

In May, Sen. Joe Manchin (D-WV) introduced bipartisan legislation that would require MSHA to issue within seven days of enactment an emergency temporary standard to help protect mine workers from exposure to COVID-19, followed by a final rule. At press time, the COVID-19 Mine Worker Protection Act (S. 3710) remained in the Senate Health, Education, Labor, and Pensions Committee.

One month after the bill was introduced, the United Mine Workers of America and the United Steelworkers filed in the U.S. Court of Appeals for the District of Columbia Circuit a joint emergency petition against the Department of Labor and MSHA as a measure to compel the agency to issue an emergency temporary standard on infectious diseases.

“The noted legislation has not yet been enacted and the petition before the U.S. Court of Appeals is pending,” the report states. “MSHA leadership told us it does not intend to issue an emergency temporary standard for COVID-19 until it determines the need arises.”