Labor Unions Fight for Emergency Temporary Standards to Protect Workers from COVID-19 Exposure

The USW joined the United Mine Workers Union (UMWA) in filing a petition on June 16 to force the Mine Safety and Health Administration (MSHA) to protect miners from exposure to COVID-19.

If successful, the petition, filed with the U.S. Court of Appeals for the District of Columbia circuit, sought a court order to compel MSHA to issue an Emergency Temporary Standard (ETS) for infectious diseases.

“The problem is that the guidance is entirely voluntary, and some mine operators have not volunteered to implement it,” Mike Wright, director of USW’s Health, Safety & Environment Department, wrote in his declaration. “These operators are putting their employees and our members at risk. In addition, they are putting those miners’ families and their communities at risk.”

The unions’ petition states that miners need an ETS because they face unique challenges working closely with each other underground.

Miners face different risks

The general public does not descend to work in a “cage” like many miners do. “They are squeezed into a small elevator car, with their bodies compressed together and their faces inches from each other,” Wright wrote.

Workers in Local 12-9477 face these unique challenges. They work at the Waste Isolation Pilot Plant (WIPP) in New Mexico, an underground salt repository for transuranic waste that consists of items contaminated with small amounts of plutonium and other man-made radioactive elements. 

At WIPP, miners descend to the salt mine in a six-foot by nine-foot cage, said Javier Leyva, Local 12-9477 safety representative. He said doing that “makes social distancing go away.”

“Management limits the number of people in the cages, but people are still not at the six-foot recommendation to be away from each other,” he said. “In a cage of four people, we are still shoulder to shoulder. The company requires you to write down who was in the cage with you so that contact tracing can be done if a worker comes down with COVID-19.”

Working in the salt mine is noisy sometimes, and Leyva said that forces him to move closer to others in order to communicate with them.

“Most Americans do not work in cramped underground quarters,” Wright wrote. “Most are not exposed to high levels of silica and diesel emissions.

“Most Americans can choose to follow CDC guidelines on sanitation, social distancing, and the quarantine of symptomatic individuals,” Wright wrote. “Miners have no such freedom; those choices are made by the mine operator.”

Fight for worker health and safety

Since the beginning of the COVID-19 pandemic, the labor movement has fought for Emergency Temporary Standards (ETS) for infectious disease that are mandatory and legally enforceable.

The recent petition is the second attempt to convince MSHA to issue a standard after David Zatezalo, a former coal industry executive who heads MSHA, declined the UMWA’s March 24 petition.

The AFL-CIO also tried to get an ETS on infectious disease from the Occupational Safety and Health Administration (OSHA). 

The federation filed a petition on March 6 to the Department of Labor (DOL), and the USW signed on as well.

Not all employers are following a coronavirus protocol and of those that do, the guidelines vary, the AFL-CIO said in its petition. 

A perfect example of some guidelines being followed and others not followed is the Hanford nuclear reservation in Washington state.

USW Local 12-369 saw how Hanford contractors were “cherry picking” which COVID-19 guidance principles they wanted to follow, and the union issued a stop work order because workers’ lives were being put at risk. The local went to the Department of Energy (DOE) and ensured the site followed one COVID-19 protocol.

The DOL declined to issue the ETS. The agency said its existing enforcement of the Occupational Safety and Health Act, along with the COVID-19 requirements and guidelines of other entities, rendered an ETS unnecessary.

The AFL-CIO then sued OSHA on May 18 to force the agency to issue an ETS. But on June 11, a three-judge panel on the D.C. Circuit Court of Appeals rejected the federation’s appeal.

The U.S. House of Representatives passed legislation that would require employers to develop and implement infectious disease exposure control plans. Called the Health and Economic Recovery Omnibus Emergency Solutions Act (HEROES Act), H.R. 6800 passed the House on May 15.  The legislation is now awaiting approval in the Senate.

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