You know, some months when I sit down to write this column, the topics just present themselves to me. There’s some new Commission case, or some development over at MSHA, the Mine Safety and Health Administration, that screams to be written about.
The problem these days, though, is that while a lot is going on over at the Department of Labor, I just can’t write about it. Key officials are still awaiting Senate confirmation, and many other senior staff members are leaving or have already left. Regulations and policies are being finalized or are in the process of being pulled back. Litigation is ongoing, and the administration’s positions in those court cases are changing from day to day.
Even if I were in a position to write a column that veers toward the political, I’d be afraid to do it, since what I tell you today could and almost definitely would be outdated news by the time this goes to print.
So, what’s a smart, politically savvy lawyer to do? Welp, this feels like a good time to review basic principles and call it a day.
For that reason, we’re going to talk about MSHA and its general industry counterpart, the Occupational Safety and Health Administration (OSHA). MSHA oversees safety at every mine in the country. (“Mine” being a very broad category that includes quarries, cement plants, pretty much any place where minerals are extracted or processed.) OSHA oversees safety in virtually everything else. (To be clear, who – MSHA or OSHA – has jurisdiction is not always clear, but that’s something we can take up in another column.) MSHA has fewer inspectors and inspects fewer sites, of course, but it also has powers far disproportionate to its size. Let’s review some key differences between the two agencies.
First of all, OSHA doesn’t inspect every facility that’s subject to its jurisdiction. Put differently, if you work at an OSHA site, you might never see an OSHA inspector. Ever. Since the agency doesn’t have the resources to inspect everybody, OSHA prioritizes its inspections.
First, it will go out to inspect imminent danger situations, then to operations where there has been a fatality or a severe injury. Next, it will investigate worker complaints and referrals from other agencies. Only then will it conduct targeted inspections for industry sectors that OSHA thinks are particularly hazardous and at sites that have a high injury rate.
MSHA, on the other hand, will inspect your mine without fail. If you’ve got an underground mine, you’ll see inspectors at least four times per year, and if you’re a surface operation, it will be at least twice. You might see them more often than that, if there’s an accident or a hazard complaint, but you can bet the farm that you’re going to see them at least twice or four times a year.
Also, MSHA has the right of warrantless entry. That means when an MSHA inspector shows up at your door, you always have to let them in. If you refuse, you’ll be cited for impeding the inspection. However, that’s not true for OSHA. If you get a knock on the door and it’s OSHA, you have the right to send them away.
Now, let me be clear: the inspector will almost certainly go to court and get a warrant that will force you to let them enter. (And I am absolutely not recommending that you routinely refuse entry to OSHA. Seriously, don’t do that.) A day or two later, OSHA’s going to show back up and demand to be let in, but you’ve given yourself some breathing room, and they won’t be able to cite you for impeding an inspection.
The Mine Act is what we call a “strict liability” law. That means that if there’s a violation of the Act or one of its regulations, the mine operator is held responsible. No excuses, and no legal defenses. (Sure, we can challenge the negligence or the gravity of a violation, but if the violation occurred, from a legal perspective, the company is at fault.) The OSH Act is different. There are actual defenses an employer can raise if it gets an OSHA citation. The employer can say, for example, that it did everything right and that it had rules in place to prevent a violation, but that an employee ignored the rules, and that’s why there was a violation. The employer can say that if it complied with the letter of the regulation, employees would have been exposed to an even greater hazard. Or the employer can argue that it was not feasible to comply with the cited regulation. All of these situations require the employer to prove certain things before they can use the defenses, but the point is that there are defenses in an OSHA case, whereas in an MSHA case, there are none.
Section 5(a)(1) of the OSH Act is what’s called the “general duty clause”; the details of how the general duty clause is applied may be shifting under this Administration, but essentially it says that an employer is obligated to provide a safe workplace for its employees. Even if there is no specific regulation that tells you what you can or can’t do, you’ve got to make the place safe for your folks.
The Mine Act doesn’t work that way. For MSHA’s purposes, you have to follow what’s in the Act or, more to the point, do what the regulations tell you to. (There’s an exception in the case of imminent dangers under Sec. 107(a) of the Mine Act, but that’s also a topic for another time.) If there’s no standard, or if you’re in compliance with an existing standard, it doesn’t matter if the inspector thinks there’s a hazard. It’s not a violation. (Let me be clear: you should always be on the lookout for and address hazards at your mine. But I’m talking about compliance here, not safety. They’re related, but different.)
Here’s another big difference: under Sec. 110(c) of the Mine Act, an individual company agent can be held personally responsible if it is found that that agent knowingly “ordered, authorized, or carried out” a violation of the Mine Act or the regulation. An agent is basically someone who bears responsibility for the safety of the workforce, like a mine superintendent, but even a supervisor or fireboss can be found liable. In other words, if there’s a knowing violation, the company isn’t the only one on the hook: individual managers can be in the jackpot as well.
That is not the case for OSHA violations. For those, only the company can be held civilly responsible for a violation. (Now, that’s different if OSHA – or MSHA, for that matter – thinks there has been a criminal violation, but thankfully those circumstances arise only very rarely. We can talk about that, too, in another column, if you’d like.)
Phew. At least to me, the differences between OSHA and MSHA are pretty interesting (maybe that’s just a geeky lawyer thing?), and I managed to get through this month’s column without getting all political on you. That said, if you want to dish politics at any point, give me a shout. I’m happy to talk. Just not in print.