7th Circuit Holds MSHA May Inspect Medical & Personnel Records

Big Ridge, Inc. v. Federal Mine Safety and Health Review Commission

(April 26, 2013) ___ F.3d ___ (2013 WL 1776633)

In Big Ridge, Inc. v. Federal Mine Safety and Health Review Commission (April 26, 2013) ___ F.3d ___ (2013 WL 1776633), the United States Court of Appeals for the Seventh Circuit held that MSHA is authorized under the Mine Act and 30 CFR regulations to inspect mine employee medical and personnel records when reviewing mine operators’ injury and illness reports.

In October 2010, MSHA directed 39 mine operators to produce employee medical records (including doctor’s slips, sick leave requests, and worker compensation filings) and personnel records (including payroll records and timesheets) in addition to required injury and illness reports for MSHA to audit during inspection. MSHA sought to determine whether the mines had not been underreporting miners’ injuries and illnesses. MSHA requested the medical and personnel records under Section 103(h) of the Mine Act and 30 CFR § 50.41.

By way of background, Mine Act Section 103(h) imposes certain reporting and record-keeping requirements on mine operators. Particular requirements are specified in MSHA’s regulations, codified in Title 30 of the Code of Federal Regulations. Mine operators, among other requirements, must immediately report serious injuries or incidents (30 CFR § 50.10); must report all mine accidents, injuries and occupational illnesses as they occur on MSHA Form 7000-1 (30 CFR § 50.20); and must report employee work hours for each quarter on MSHA Form 7000-2 (30 CFR § 50.30).

30 CFR § 50.41 authorizes MSHA to verify information provided in operators’ Form 7000-1 and 7000-2 reports. This provision reads:

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.

(30 CFR § 50.41.)

Two of the 39 mine operators refused to produce the records, and MSHA issued citations and imposed monetary penalties to those operators. The two operators appealed the citations, arguing that MSHA has no authority to require operators to produce records beyond those specifically required by regulation. In other words, the operators argued that MSHA could not demand that the operators produce records that the Mine Act or 30 CFR regulations do not specifically require operators to maintain.

An MSHA ALJ and the Federal Mine Safety and Health Review Commission both rejected the operators’ arguments and found that MSHA’s document demands were lawful under Section 103(h) of the Mine Act and 30 CFR § 50.41. The mine operators appealed to the 7th Circuit, again challenging MSHA’s authority to inspect medical and personal records under the Mine Act, and also raising privacy claims under the Fourth Amendment of the U.S. Constitution.

The Court of Appeal held that under 30 CFR 50.41, MSHA may require mine operators to permit MSHA inspectors to review and copy employee medical and personnel records necessary to verify the mine operators’ compliance with other reporting obligations. The Court reasoned that Section 103(h) of the Mine Act, under which MSHA promulgated 30 CFR § 50.41, grants MSHA broad inspection and document review powers, including the power to “reasonably require” mines to provide information that would enable MSHA to perform its enforcement functions. The Court determined that employee medical and personnel records are relevant and necessary for MSHA to determine whether mine operators have accurately reported mine-related injuries and illnesses.

The Court also held that MSHA’s audits did not violate the operators’ Fourth Amendment rights, because MSHA’s demands were limited in scope and reasonably necessary to keep mines safe, citing Donovan v. Dewey (1981) 452 U.S. 594 [authorizing warrantless mine inspections]. The Court additionally characterized MSHA’s record demands as “administrative subpoenas” to differentiate them from “searches,” on the basis that mine operators must produce the records rather than MSHA physically search for and seize them.

In this case, MSHA requested medical and personnel records from the 39 operators because MSHA suspected that those operators were all underreporting illnesses and injuries to avoid Pattern of Violation status. The Court of Appeal, however, did not limit MSHA’s ability to request those records to similar circumstances. MSHA, consequently, can apparently now request operators’ medical and personnel records to verify illness and injury reports during even routine inspections.

Finally, the Court’s decision raises the question of whether operators must modify their medical and personnel records retention practices to ensure their ability to comply with a potential MSHA inspection request. Perhaps future litigation will provide the answer.

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