By Ellen Smith
The Review Commission upheld the right of MSHA to inspect and copy employee medical records, workers’ compensation records, and other records held by operators for purposes of determining compliance with reporting standards under Part 50 of the Mine Act.
The decision initially involved consolidated appeals of several mining companies who objected to an MSHA audit.
Several of the companies initially involved with the case were owned by Massey Energy, which then merged with Alpha Natural Resources. These companies settled with MSHA and turned over records, leading MSHA to find unreported accidents.
However, Peabody Coal Co.’s Big Ridge Mining continued to challenge MSHA’s right to audit medical records. Big Ridge lost its case before Review Commission ALJ Kenneth Andrews, and then began accruing a $4,000-per-day fine beginning June 23, 2011 – 30 days after the ALJ decision. As of June 8, 2012, the company’s fine stood at $1,420,000, according to MSHA spokesperson Amy Louviere.
By a 4-to-1 vote, the Commission ruled that MSHA is entitled to very specific records kept by mining companies. These records include:
- All MSHA Form 7000-1 Accident Reports.
- All quarterly MSHA Form 7000-2 Employment and Production Reports.
- All payroll records and time sheets for all individuals working at the mine for the covered time period of July 1, 2009 through June 30, 2010.
- The number of employees working at the mine for each quarter.
- 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 or may have resulted from work at the mine for all individuals working at your mine for the period of July 1, 2009 through June 30, 2010. “In your possession” means within your mine’s possession or within the control, custody, or possession of another entity or person from whom you have authority to obtain the required records. If any of the required records are in the exclusive possession of any other entity or person from who you do not have authority to obtain the required records, you must so certify and identify the entity or person who has exclusive possession.
The Commission ruled that even though the records sought are not specifically required to be maintained by the Mine Act, “the requested records and information are relevant and necessary to the Secretary’s function of verifying operator compliance with Part 50 reporting requirements.”
While the company, and some people argued that MSHA’s request invaded employees’ privacy rights respecting medical data, the Commission disagreed. MSHA has put in place certain protocols to safeguard the miners’ personal information, and does not store and retrieve the requested information by individual miner names. In addition, courts have ruled that disclosing “private medical information ...to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient.”
The Commissioners agreed that “the Secretary’s clearly articulated need for this information to carry out her important functions under section 103 of the Mine Act and the Part 50 regulations.” MSHA agreed to safeguard the information, which “must prevail against the claimed individual privacy interests. ... The governmental interest in regulating occupational safety and health in a notoriously dangerous industry outweighs the privacy interests of any individual miner and plainly justifies MSHA’s audit requests.”