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Unintended Consequences of MSHA’s Proposed Rules for Workplace Examinations

The Mine Safety and Health Administration (MSHA) has a longstanding requirement that mines designate a competent person to examine each working place at least once during each shift for conditions that may affect safety or health. No safety manager would dispute that this is a sensible rule. That MSHA has proposed that employers now be required to document any corrective action that is taken with respect to any hazard identified in the workplace examination is also not unreasonable. Most of my clients already do that. However, one of the proposed changes to the regulation — while seemingly minor — could have unintended consequences.

Under the current regulation, a workplace examination must be performed at some point during each shift. However, the proposed rules would require these examinations before miners begin working each shift. While this change may seem trivial, it disregards the fact that many mines operate on a continuous basis and that the time surrounding shift changes already serves an important purpose. Under the proposed regulations, when a night shift ends at 7 a.m., the designated competent persons would first need to conduct a workplace examination before the day-shift employees begin working, even though most mines operate continuously from shift to shift. Operators ending their shift often use this time to communicate with their counterparts of the next shift what they have been doing for the preceding 8 to 12 hours, including any process upsets that might create a real hazard to employees. Requiring miners to wait for a workplace examination to be conducted would make the transfer of such information much more difficult, not to mention that it could dramatically increase labor costs as workers stand idly by while the workplace examination is conducted. The proposed regulation makes little sense.

The proposed regulations also add a new requirement that operators promptly notify miners in any affected areas of any conditions that may adversely affect safety or health. While this may sound like a good idea, it fails to take into account the sheer volume of information that is often contained in each workplace examination report. Rather than highlight any safety or health hazards discovered by a workplace examination, employers might simply share the entire workplace examination report with potentially affected employees to ensure compliance with the regulation — resulting in information overload. In short, this requirement could undermine employee safety, rather than enhance it.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.