MSHA Deputy Assistant Secretary Jeannette Galanis, Informed Stakeholders That MSHA Would Not Issue An ETS.
By Brian Hendrix
Writing yet another column about the COVID-19 pandemic was high on my “To Don’t” list. You may feel the same way about reading another column about the pandemic. Yet, here we are, and we have President Biden to thank or to blame for that (depending on your perspective).
Back in December, then President-elect Biden announced his “three-pronged” plan to “defeat” COVID-19, urging Americans to “mask up” for “100 days to make a difference” and to get vaccinated. After more than 200 days of masking and vaccinating didn’t do the trick, President Biden announced a new “COVID-19 Action Plan.” This new plan is a “six-pronged, comprehensive national strategy” to “combat” COVID-19.
The most controversial element of this plan is what has been referred to as the vaccine requirement or mandate. The good news is that is doesn’t apply to mining, and MSHA does not intend to issue any rule requiring miners to get vaccinated or tested.
Here’s the relevant section of the President’s plan:
• Requiring all employers with 100+ employees to ensure their workers are vaccinated or tested weekly.
• The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement.
What you just read doesn’t require you (or any employer) to do anything right now. It is not a new law, rule, regulation or standard. The White House has directed OSHA to issue a new rule or standard.
This new OSHA rule – an Emergency Temporary Standard (ETS) – hasn’t been issued yet. OSHA drafted the rule and sent it to the White House for review and approval. However, right now, there’s no vaccine mandate or requirement to comply with.
Of course, OSHA doesn’t regulate mining. That’s MSHA’s job, and there’s no mention of MSHA in the president’s new plan. An OSHA ETS won’t apply to mining, miners or mine operators.
No ETS
Moreover, late last month, MSHA Deputy Assistant Secretary Jeannette Galanis, informed stakeholders that MSHA would not issue an ETS. Last year, MSHA determined that an ETS wasn’t necessary to protect miners from COVID-19.
That was the right decision then, and it remains the right decision today. So far, the industry has weathered the pandemic remarkably well, and MSHA has all the enforcement authority it needs to respond if that changes.
MSHA continues to encourage miners to get vaccinated, and mine operators and organized labor are doing the same. The vaccination rate for all adults in the United States is somewhere around 65%, but I don’t know if the rate is higher or lower in the mining industry.
I don’t doubt that a vaccine or testing mandate would have an impact on the vaccination rate, but I am certain that it wouldn’t get the industry to100%. I’d say that all the time and effort MSHA, miner operators and organized labor would spend on promulgating, litigating and (if successful), enforcing a vaccine or testing mandate would be much better spent encouraging and incentivizing miners to get vaccinated.
Familiar Tune
Does all this sound vaguely familiar? Are you thinking that we’ve already been down this road? If so, you’d be right. In January of this year, the president ordered OSHA and MSHA to consider whether any emergency temporary standards on COVID-19 are necessary. OSHA (and MSHA) are authorized to issue an ETS if there’s new, “grave danger” from a new hazard in the workplace, and an ETS is “necessary” to protect workers from that hazard. As I mentioned above, MSHA did as directed and determined an ETS wasn’t necessary to protect miners from COVID-19.
OSHA did the same, and it concluded that an ETS was only necessary to protect certain healthcare workers. OSHA issued an ETS applicable to healthcare in late June. Importantly, it does not require or mandate vaccination. OSHA recognized “the promise of vaccines to protect workers,” but it found that “vaccination has not eliminated the grave danger presented by the . . . virus to the entire healthcare workforce.”
Just a few months ago then, OSHA declined to require the vaccination of healthcare workers who treat COVID-19 patients. Now, the White House has decided that mandating vaccinations or testing is necessary to protect all employees who work for employers with 100 or more employees, and it directed OSHA to make that happen.
The White House left OSHA to explain how unvaccinated employees who work for an employer with 99 employees aren’t in grave danger while unvaccinated employees who work for an employer with 100 employees are. That’s a hard question to answer, and it is just one of dozens that OSHA was left to answer. Nevertheless, OSHA moved quickly, and White House is now reviewing OSHA’s draft of the ETS.
Once the White House completes its review and returns the ETS to OSHA, OSHA will no doubt finalize the ETS and release it. If the ETS that requires vaccines or testing, it will be immediately challenged in court by a host of well represented parties. OSHA has issued a handful of emergency temporary standards since 1971.
Six were challenged in court, and OSHA lost five of out those six cases. OSHA’s track record in ETS litigation is terrible. OSHA might prevail; it has a small chance. However, the smart money will be on the challengers.
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached [email protected].