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MSHA: Vaccine-or-test rule for employers does not apply to mines

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President Joe Biden’s COVID-19 vaccine-or-test rule for large employers does not apply to mining companies, a Mine Safety and Health Administration leader said.

The U.S. Department of Labor’s Occupational Safety and Health Administration submitted Oct. 12 the initial text of an emergency temporary standard to require employers with more than 100 employees to ensure workers are vaccinated or tested weekly for COVID-19. Biden announced in September that the Labor Department would draft the rule.

But mines do not operate under the oversight of OSHA. They have their own regulatory agency: MSHA.

“The executive order for vaccines did not cover MSHA or any mines,” said Jeannette J. Galinas, MSHA deputy assistant secretary for policy, during the question-and-answer session of the agency’s quarterly stakeholder update Sept. 29. “In addition, there is no agreement between OSHA and MSHA where OSHA would be able to have mines covered under OSHA.”

Galinas said MSHA worked with the White House to determine whether MSHA should issue its own emergency temporary standard regarding vaccination, “… and we have concluded there should not be an ETS issued by MSHA just because of the nature of the Mine Act and strength of the Mine Act as opposed to the Occupational Safety and Health Act.”

The Federal Mine Safety and Health Act of 1977 “authorizes the Secretary of Labor to promulgate and enforce safety and health standards regarding working conditions of employees engaged in underground and surface mineral extraction (mining), related operations, and preparation and milling of the minerals extracted,” according to an interagency agreement between MSHA and OSHA.

The Occupational Safety and Health Act of 1970 “gives the Secretary of Labor authority over all working conditions of employees engaged in business affecting commerce except those conditions with respect to which other Federal agencies exercise statutory authority to prescribe or enforce regulations affecting occupational safety or health,” the agreement states.

Earlier this year, MSHA issued guidance on how to mitigate COVID-19 in the mine environment. The March 10 guidance came about a year after the start of the pandemic.

“We agree that all mine operators need to take precautions with COVID and have their employees masked up and keep as away from each other as possible,” Galinas said on the stakeholder call.

The advice reiterated much of the information already shared with the public, including ensuring infected or potentially infected employees are not in the workplace, implementing and following physical distancing protocols, and using surgical masks or cloth face coverings. It also provided guidance on the use of personal protective equipment, improving ventilation, good hygiene and routine cleaning.

At the time, MSHA was not tracking all COVID-19 cases at every mine — only cases that proved to be work-related. If a mine worked with state and county health authorities to confirm that an employee contracted the virus at work, then the operator must report the case to MSHA, the agency stated in March.

In Nevada, the mining industry directly employs about 11,000 people, according to the Nevada Mining Association. The largest mining employer is Nevada Gold Mines, a joint venture of Barrick Gold and Newmont corporations, with about 7,000 employees in northeastern Nevada.

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Editor’s note: MSHA did not immediately respond to a request for more information. This article will be updated when more information comes available.

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