On March 10, 2021, MSHA issued Guidance on Mitigating and Preventing the Spread of COVID-19.  While this guidance is advisory in nature and creates no new legal obligations beyond the MSHA standards and regulations already in place, it provides a helpful roadmap for mine operators looking to employ best practices and avoid unnecessary legal exposure.  The guidance is very similar to OSHA’s January 2021 “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

MSHA’s primary message to operators is that they should implement COVID-19 Prevention Programs at each mine and suggests engagement of miners and miner representatives in program development. While either a stand-alone COVID-19 Prevention Program or additions to existing training and education programs may be sufficient, four elements are suggested by MSHA for the process of development of all COVID-19 Prevention Programs:

1. Conduct a hazard assessment of the mine site;
2. Identify appropriate measures that limit the spread of COVID-19 in mine settings;
3. Adopt measures to ensure that miners infected with COVID-19, or potentially infected, are separated from others and sent home from the mine; and
4. Implement protections from retaliation for miners who raise COVID-19-related concerns.

MSHA’s Guidance also contains fifteen elements the agency suggests should be included in any COVID-19 Prevention Program and outlines ten “need to know” facts about COVID-19 protections, most of which should not be news to anyone paying attention to public health authority guidance over the last year.  These include six-foot physical distancing whenever practicable, good personal hygiene, hand washing practices, symptom monitoring, and face mask use and protections.  MSHA also explains other key measures, including specific recommendations to remove COVID-19 infection hazards by separating and sending home infected or potentially infected miners for quarantine and isolation. 

While MSHA’s Guidance may seem like a repeat of the same advice employers have been hearing for the last year, mine operators should take this as a not-so-gentle reminder of the importance of implementing preventive measures if they want to avoid legal liability.  Legal questions often arise when implementing these best practices, and advice of counsel is the best way to avoid a misstep.