MSHA Legal and Regulatory Update (SE Mine Safety and Health Conference - Nov 2013)

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Information about MSHA Legal and Regulatory Update (SE Mine Safety and Health Conference -...
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Published on March 6, 2014

Author: MatthewRKorn

Source: slideshare.net

Description

Matthew Korn presented this MSHA legal and regulatory update at the 2013 SE Mine Safety and Health Conference. Matthew reviewed the POV Final Rule, Part 50 Audits and medical records, recent Commission and ALJ decisions, miner's rights and whistleblower claims, the status of the backlog project, and the implementation of GHS/HazCom standards.

Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® What’s New with MSHA: Legal and Regulatory Update Presented by: Matthew R. Korn C: (571) 455-6350; O: (803) 255-0000 mkorn@laborlawyers.com www.workplacesafetyandhealthlaw.com www.laborlawyers.com Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport · Houston · Irvine · Kansas City · Las Vegas · Los Angeles Louisville · Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC

Who said the government never gets anything done? • POV Final Rule • Part 50 Audits – Medical Records • Commission/ALJ Decisions • Miner’s Rights • Backlog Project • GHS/HazCom Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

No More Warnings (or Due Process?) MSHA’s Pattern-of-Violations Final Rule (Effective March 25, 2013) - No PPOV – Use Online Monitoring Tool - No Final Order Requirement - Moving Target for Screening Criteria Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

POV Rule Under Attack • NMA & NSSGA Challenge the POV Rule – 6th Cir. • POV rule exceeds Secretary’s authority under Mine Act – Non-final citations and orders – 20-33% error rate – 104(a) and S&S • Adoption of POV rule was arbitrary & capricious – impact on small businesses • POV rule denies operators due process of law • Screening criteria not subject to notice and comment rule-making Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

Part 50 Audits – Do I have to give MSHA private employee medical records? • According to the Commission and now the Seventh Circuit Court of Appeals, the answer is YES – even without a warrant. • 30 C.F.R. § 50.41 allows MSHA to “inspect and copy information related to an accident, injury or illnesses which MSHA considers relevant and necessary to . . . a determination of compliance with the reporting requirements of this part.” • Overall take-away – MSHA’s responsibility of ensuring the health and safety of miners outweighs personal privacy rights and operator’s Constitutional rights Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

Reporting Accidents and Injuries • Part 50 Reporting Requirements: – Immediately Reportable “Accidents” - 50.2(h) – MSHA Form 7000-1 within 10 days – MSHA Form 7000-1, Section D – “Return to Duty Report” within 5 days Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

What’s the Commission been up to lately? • Operator’s history of past violations may be considered in determining whether a violation is “flagrant” (up to $220,000 penalty) • The term “flagrant” with respect to a violation means a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

Commission Decisions Continued… • Mach Mining - Unwarrantable failure – “Good faith” belief is only the first step – Was belief objectively reasonable? • Performance Coal – Penalty determination – ALJ must explain basis for penalty under 110(i) – Secretary may seek higher penalties Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

ALJ Decisions • Sunbelt Rentals – Workplace examination – No adequacy requirement for 56.18002(a) – Does not mean operator can inspect with eyes closed • New NGC Inc. – Modification of standard – Secretary sought to modify cited standard – MSHA can allege multiple violations in citation – Must be actual prejudice to operator Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

Did he really get reinstated? – Discharge for insubordination and use of profanities. – Complaint at safety meeting and submitted safety issues on cards. – Company argued that temporary reinstatement should be tolled due to layoffs. – Not frivolously brought standard applied, evaluations were subjective. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

So you’re telling me not to sue our former employee? • Mine operator sued former miner for filing “false” discrimination complaint. • MSHA decided not to pursue the miner’s discrimination case (after he was temporarily reinstated) • Judge Feldman ordered Company to withdraw complaint Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

New Guide for Miners’ Representatives • Information regarding: – – – – – – – – Reporting hazardous conditions and imminent dangers Accident investigations Understanding the elements of discrimination under 105(c) Health and safety training Petitions for modification of a safety standard Rights to information and records Civil penalties Requests under FOIA • Designation of a miners’ representative Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

The end of the backlog, or just the project? MSHA backlog project has suffered significant cuts in funding . . . What does this mean for me? Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

MSHA Permits Adoption of GHS • PPL – August 13, 2013 – Operators who comply with OSHA’s HazCom standard are also in compliance with MSHA’s HazCom Standards under Part 47 • OSHA Standard can be found at 29 C.F.R. § 1910.1200 • MSHA still requires compliance with all aspects of Part 47 – Update written HazCom program – Conduct miner training Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® Q&A Period . . . Thanks! Join us next week! November 13, 2013 at 2:00 pm (EDT) Guest Speaker: Karen Hilliard – Business Safety Services – Contractor Liability Presented by: Matthew R. Korn C: (571) 455-6350; O: (803) 255-0000 mkorn@laborlawyers.com www.workplacesafetyandhealthlaw.com This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult counsel concerning your own situation and any specific legal questions you may have. Fisher & Phillips LLP www.laborlawyers.com ATTORNEYS AT LAW Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport · Houston · Irvine · Kansas City · Las Vegas · Los Angeles Louisville · Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · at Work® Solutions Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com ● Phone (803) 255-0000

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