Draft Mine Safety Legislation Includes PAWA Provisions

Members of the House and Senate appear to be using proposed legislation drafted in response to recent mine and oil spill disasters as a vehicle to push broader Occupational Safety and Health Administration (OSHA) reform provisions contained in the Protecting America’s Workers Act (PAWA) (H.R. 2067, S. 1580). House and Senate Democrats proposed major safety reforms for mines and other workplaces in the Miner Safety and Health Act of 2010. As emphasized by Senator Patty Murray (D-WA), Chair of the Senate Subcommittee on Employment and Workplace Safety, “[b]etween recent mine disasters and similar tragedies in other industries, it has become clear that Congress needs to act to strengthen protections provided by both MSHA and OSHA.” To that end, the discussion draft (pdf) of the legislation provides the Mine Safety and Health Administration (MSHA) with additional inspection and investigation authority. Mines with a pattern of significant safety problems would be placed on a “pattern of violation” status if their safety and compliance record falls below thresholds established by MSHA. Following the placement of a mine in pattern status, miners will be withdrawn from the mine and MSHA will issue a remedial order which the mine must satisfy. Among other proposals, the legislation would also increase maximum civil and criminal penalties for certain violations of mine safety law.

Although the legislation focuses on mine safety, it incorporates a number of changes to the Occupational Safety and Health Act (OSH Act) contained in PAWA. As explained in a summary, (pdf) the proposed bill strengthens whistleblower protections and provides greater rights for victims of accidents and their family members to participate in proceedings under the OSH Act. For violations designated as serious, willful, or repeated, filing a notice of contest by an employer would not stay the period for correction.

The legislation also would increase OSH Act civil penalties, which would be adjusted for inflation at least once every four years. Under current law, the minimum civil penalty for a willful or repeated violation is $5,000, and the maximum penalty is $70,000. Under the proposal, the minimum and maximum penalties would be increased to $8,000 and $120,000 respectively. For willful or repeated violations causing an employee’s death, the minimum and maximum penalties would be not less than $50,000 or more than $250,000. Civil penalties for serious violations also would increase, as would OSH Act criminal penalties for willful violations causing an employee’s death. A known violation that results in serious bodily harm to an employee would subject an employer to a criminal penalty. For purposes of the criminal penalty, an employer includes “any officer or director.” Unlike PAWA, the proposed legislation does not extend OSH Act coverage to public employees.

PAWA has received a lot of attention on the Hill in recent months. Hearings were held on the bill’s penalty provisions in March and whistleblower and victim’s rights provisions in April. Supporters of PAWA likely will consider including some of its provisions in a larger bill focusing on more publicized workplace disasters – i.e., the Massey Energy Upper Branch Mine and BP platform explosions – to be a more viable strategy in getting such measures approved.

It is expected that a final version of the bill will be introduced shortly.

Photo credit:  Matt Collingwood

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.