In the current Administration, both the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) have fixated on the issue of determining whether employers are underreporting injuries and occupational illnesses. This has lead to certain new policies and enforcement initiatives, and — most recently — in a Federal Mine Safety & Health Review Commission (FMSHRC) decision expanding the agency’s right to obtain non-mandatory records that have long been treated as confidential, and with a related employee right of privacy in his/her own medical and personnel information. That has all changed.

Adele Abrams, Esq.

In the case of OSHA, it conducted a Recordkeeping National Emphasis Program (NEP) in 2009-2011, and used its subpoena power under the Occupational Safety and Health Act of 1970 and its regulations requiring maintenance of certain records, as well as powers for Medical Review Orders, to reach out to health care providers, insurers, and other third parties to obtain information that can be used to verify or refute employer data. Although the first phase of the NEP did not yield much information to support a theory of wholesale underreporting, the design of the NEP was tweaked and the program was relaunched in late 2010. Not surprisingly, OSHA now announced that about half of the audited employers had underreported their injuries and illnesses.

Armed with data from the NEP, OSHA has now declared action against poorly designed incentive and discipline programs. Under the policy released in March 2012, an incentive program that is based on lagging indicators such as “how many days/quarters/years an employee or team of employees goes without a lost-time accident” could result in legal action by OSHA. Similarly, OSHA announced its intention to critically scrutinize discipline programs that target primarily those employees who have suffered an occupational injury or illness. In fact, in a recent conference I handled on some OSHA citations in New Jersey, the OSHA area director specifically commented that the majority of the discipline examples my client provided (to prove that rules were enforced for the affirmative defense of employee misconduct) involved injury cases. We quickly had to supplement our filing with other examples of discipline for safety infractions where no injuries had occurred!

For MSHA, the current legal issue came to a head after it launched a Part 50 audit campaign targeting about 40 mines for comprehensive record audits. Eight mines fought back to test the validity of MSHA’s fairly broad document request – which went beyond the 7000-1 and 7000-2 forms to include myriad documents and information discussed below — and each received a citation under 30 CFR 50.41 and a subsequent Section 104(b) order when they continued to deny the document request. The mines were located in Illinois, Indiana, Virginia, West Virginia, and Kentucky, and six of them are owned by Massey.

On May 24, 2012, in its decision of the consolidated cases, Big Ridge Inc. et al. v. Secretary of Labor, the Commission held, by a 4-1 vote (Commissioner Duffy, dissenting), that the regulatory language of 50.41 and Section 103(h) of the Mine Act requires operators to make available requested records to MSHA, even though the records are not specifically required to be maintained by the Act. The FMSHRC also held that the requested records and information were “relevant and necessary to the Secretary’s function of verifying operator compliance with Part 50 reporting requirements” and that the request did not violate any right to privacy of the mine operator or its individual employees, there as no violation of the Fourth Amendment prohibition against warrantless searches, and it did not violate anyone’s Fifth Amendment Due Process rights.

The request at issue is worth consideration by anyone reading this, as you think about just how many records this would involve and how many employees it would affect at your operation if you received such a demand. MSHA required each operator in this case to produce, for the period July 1, 2009, through June 30, 2010:

1) All MSHA Form 7000-1 Accident Reports.
2) All quarterly MSHA Form 7000-2 Employment and Production Reports.
3) All payroll records and time sheets for all individuals working at your mine for the covered time period.
4) The number of employees working at the mine for each quarter.
5) All medical records, doctor’s slips, worker compensation filings, sick leave requests or reports, drug testing documents, emergency medical transportation records, and medical claims forms in your possession relating to accidents, injuries, or illnesses that occurred at the mine of ma have resulted from work at the mine for all individuals working at your mine for the period [defined].

The MSHA request further defined “possession” as within the mine’s possession or in the control, custody, or possession of another entity or person from whom the mine operator could obtain the records. If the mine operator lacked authority to obtain third party records, it had to certify to this and identify the entity with exclusive possession. Quite a sweeping request!

The case was initially heard by ALJ Andrews, who upheld the request and noted that “if an operator possessed the sole power to control the flow of information to MSHA, there would be an incentive to under-report injury and illness information.” The Commission agreed. They also held that the disclosure of private medical information to MSHA is a reasonable exercise of government responsibility for the public welfare and does not violate rights or liberties protected by the Constitution. Mine operators have no reasonable expectation of privacy in the disputed records because the mining industry is pervasively regulated, and this power to obtain non-mandatory records and information is included in Section 103(h) of the Mine Act.

The Commission majority also noted that similar broad powers are included in Section108(a)(1)(E) of the Act, which permits the Secretary to obtain an injunction in U.S. District Court to compel production of “any information or report requested by the Secretary…in furtherance of the provisions of this Act, or [where an operator] refuses to permit access to, and copying of such records as the Secretary…determines necessary in carrying out the provisions of this Act.”

Section 103(h) provides, in pertinent part:

In addition to such records as are specifically required by this chapter, every operator of a coal or other mine shall establish and maintain such records, make such reports, and provide such information, as the Secretary may reasonably require from time to time to enable him to perform his functions under this chapter.

The cited standard, 30 CFR 50.41, provides the following:

Upon request by MSHA, an operator shall allow MSHA to inspect and copy information related to an accident, injury or illnesses which MSHA considers relevant and necessary to verify a report of investigation required by 50.11 of this part or relevant and necessary to a determination of compliance with the reporting requirements of this part.

Of course, this includes not only the mandatory reporting within 10 days of qualifying injuries/illnesses, and filing immediate notice with the agency within 15 minute of those occurrences classified as “accidents” under the definition of 50.2(h), but also the quarterly hour reports mandated under 50.30, which are used both to compute incidence rates for each mine and industry sector, but also to determine Pattern of Violation status.