In order to develop effective health standards, control dataflow, and discover violations, MSHA was allowed to inspect and/or copy any information the agency thought might be relevant and necessary to determine compliance with reporting requirements. This includes medical records, employment records, and other company records. Additionally, the data would allow the agency to independently verify the information that had been submitted to it with regard to accidents, injuries, or illnesses.

According to Judge Andrews, “[i]t is the operator who possesses the means to ensure complete and accurate reporting. Absent an audit of company records, MSHA must rely solely on the information provided by the operator’s safety manager. If the company does not cooperate in the process, there can be no assurance that the safety and health information compiled by MSHA is correct.” Big Ridge at p. 9. Stated a little differently, “[a]bsent all of the documents and information [requested by MSHA], there can be no effective, independent verification of the information submitted by the operators to MSHA.” Spartan Mining at p. 10.

In reaching his decision, Judge Andrews distinguished the 30-year-old Sewell Coal case by holding that the actions of the MSHA inspectors under the nationwide initiative/Part 50 audits did not constitute warrantless searches; rather, they were simple requests that the operators produce certain documents, and the requests were found to be reasonably limited by both content and time. The ALJ reasoned that, because an inspector would not be rummaging through the files of an operator, there would be little chance that unrelated private information would be released.

Judge Andrews also noted that MSHA is listed as a public health agency exempt from the Health Insurance Portability and Accountability Act (HIPAA) requirements. He found that because “Congress has allowed the agency access to the records…in a pervasively regulated industry, there cannot be an expectation of privacy.” Big Ridge at p. 14; Spartan Mining at p. 15. He further dispelled employee privacy concerns by finding that the agency had a compelling need to verify reports and determine compliance with reporting obligations, and this need outweighs any interest the operator may have in privacy.

The Big Ridge and Spartan Mining decisions represent one ALJ’s ruling on this issue. The decisions are not binding in other cases, and, in the absence of controlling precedent, the issue remains undecided. However, these two recent decisions by Judge Andrews should prompt operators to evaluate requests for medical records and other non-required documentation on a case-by-case basis. When confronted with a request for such information, an operator must decide whether to voluntarily produce for inspection the non-required documentation knowing that it could possibly be used in support of violations against the mine. If the operator refuses, it may find itself facing enforcement action from the agency because of its refusal to do so.

Whitney G. Clegg is a member of Jackson Kelly PLLC’s Wheeling, W.Va., firm, working within the Occupational Safety and Health Practice Group.

She can be reached at 304-233-4000 or wclegg@jacksonkelly.com.