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Overview of Proposed Changes to the OSHA Act Under the Miner Safety and Health Act of 2010
08/03/2010
Matthew Thomas Deffebach

Procedural Status: The draft of the Miner Safety and Health Act (the “Miner Act”) was prepared by Senators Tom Harkin (D-Iowa) and Patty Murray (D-Wash.). Representatives George Miller (D-Calif) and Lynn Woosley (D-Calif) then contributed to the draft to introduce it in the House of Representatives. After being introduced on July 1, 2010 and being referred to the House Education and Labor Committee, the Committee recently recommended that the Act be considered by the House as a whole. Senators are engaged in bi-partisan talks on the issue and expect to introduce companion legislation in the Fall of 2010.

Summary of Proposed Changes to the OSHA Act: Generally and concerning OSHA specifically, the draft bill will add greater anti-retaliation provisions, enhanced penalties, and broader enforcement tools to the agency. The key components to the proposed Miner Act are as follows:

a.

Enhanced Penalties: Congress has increased the OSHA Act’s monetary penalties only once in 40 years despite inflation during this period. In turn, the Miner Act increases both civil and criminal penalties for every type of violation under the OSHA Act and would increase penalties for willful or repeat violations that involve a fatality to as much as $250,000. Regarding criminal penalties, the Miner Act would amend the criminal provisions to change the burden of proof from willfully to knowingly. 
 

b.

Whistleblower Protections: The Miner Act would expand Section 11(c) of the OSHA Act to prevent retaliation against workers for reporting injuries, illnesses or unsafe conditions, or refusing to perform a task that the worker reasonably believes could result in serious injury or illness. The Act would also increase the existing 30 day deadline for filing a Section 11(c) complaint to 180 days. Further, the Miner Act would adopt the “contributing factor” test for determining when illegal retaliation has occurred. 
 

c.

Family Involvement: The Miner Act includes a section that would expand the rights of workers and victims’ families. The Act would provide the right of the victim to meet with OSHA to receive copies of the citation at no cost, to be informed of any Notice of Contest, and to appear and make a statement during settlement negotiations before agreement is made to withdraw or modify a citation. 
 

d.

Abatement While Citations are Contested: Currently, if an employer challenges an OSHA citation, the employer is not obligated to correct the hazard during the administrative contest period until there has been a final judgment before the Review Commission or subsequent appellant court body. The Miner Act, however, provides OSHA the authority to require abatement during contest subject to a provision where the employer can move to stay the abatement period.

To read the full overview of the provisions under the Miner Safety and Health Act of 2010 pending in the House, which would amend the OSHA Act, click on the PDF linked below.