Mine operators have long been frustrated by being held strictly liable for MSHA civil penalty assessments where an employee’s misconduct or negligence was the direct cause of the violation of MSHA regulations. While the Mine Act does provide for the strict liability of mine operators for safety violations, there are instances where coal mine operators can protect themselves from liability through the diligent and consistent enforcement of company safety policies, namely where they involve the use of seatbelts and fall protection. Mine operators are often faced with potential liability in MSHA and civil proceedings due to accidents involving mobile surface equipment or catastrophic falls from elevated positions. Mine operators can take affirmative steps to protect employees from such accidents and limit potential liability.
Recent ALJ decisions have resulted in MSHA citations being vacated where the mine operator was cited due to an employee’s failure to wear a seatbelt and fall protection, respectively, in violation of company policy. In both cases, the operator was cited under surface regulation 30 CFR § 77.1710. In both cases, the ALJs relied on Commission precedent rendering a strict interpretation of the language “shall be required to wear” provided by the regulation and indicating that such language has a separate and distinct meaning from “shall be worn.” Thus, the Commission has found that the regulation places a duty on the operator to develop and implement a safety program requiring employees to use safety devices, such as seatbelts and fall protection, and to diligently enforce such policies through “training, supervision, and disciplinary measures for failure to comply.” See Lewis-Goetz and Company, Inc., WEVA 2012-1821, p.5 (July 22, 2013) (ALJ Rae) relying on Southern Illinois Coal Corp., 5 FMSHRC 1672, 1675-75 (1983) and North American Coal Corp., 3 IBMA 93 (1974); See also Nally & Hamilton Enterprises, KENT 2011-434, p. 7 (ALJ Moran). Significantly, the language “shall be required to wear” does not impose a duty on a mine operator to guarantee that such safety devices are actually worn by employees. Id.
The analysis used by the ALJs was fact specific in finding that the operators did not violate the standard. In both cases, the operator had a written safety policy in place requiring that seatbelts or fall protection be worn by employees. One operator included a graduated disciplinary procedure in the policy and both operators were found to have strictly applied discipline for violations of the policy, including dismissal for repeat offenders. The operators reviewed the policy with new employees and confirmed this review by having the employees sign a policy acknowledgement, and this process was repeated annually for current employees. They also provided training on their policies through yearly refresher training, safety videos and safety meetings. The operators also established that they consistently enforced their policies through disciplinary measures. One ALJ noted that the lack of recorded disciplinary action could actually be construed as showing that the policy was effective.
In any case, the operator’s liability for an employee’s failure to wear a seatbelt or failure to wear fall protection will turn on the operator’s diligent and consistent enforcement of its policies, documented disciplinary measures and repeated training on the requirements of the policies. Mine operators should also train its management personnel regarding the importance of enforcing its policies for the safety of employees and to document such enforcement and discipline. Such discipline should be applied equally and consistently and management should avoid treating separate violations or employees differently to avoid claims of “disparate treatment” in any subsequent MSHA proceedings, including miners’ discrimination cases.
Most mine operators have such policies in place, but the enforcement of them is often sporadic and inconsistent. It simply is not enough that the mine operator has a policy. The operator must put the policy into practice by strictly requiring compliance and imposing discipline on employees who are observed violating the policy. The operator also should provide repeated training to employees on the safety and disciplinary policies and review them more frequently in safety meetings and discussions. Any such training, policy reviews and disciplinary action should be well documented. These are small steps that operators can take to prevent the larger consequences of a major haulage or fall accidents and improve employee safety by reducing unnecessary risks.