Judge’s order would reverse job cuts that endangered black lung screening programs

U.S. District Judge Irene Berger has granted a preliminary injunction that would reverse federally ordered job cuts endangering legally required black lung screening.

Berger’s order, issued Tuesday, came in a lawsuit against U.S. Health and Human Services Secretary Robert F. Kennedy Jr. over cuts at the National Institute for Occupational Safety and Health.

“Does the Secretary of the Department of Health and Human Services genuinely believe that a miner diagnosed with black lung is not being injured when the program designed to confirm his condition and provide him with workplace protections to prevent its progression is rendered inaccessible?” Berger wrote.

“This Court does not share such a belief.”

Hundreds of workers at the Morgantown NIOSH facility were informed earlier this year that they would lose their jobs. The facility conducts research and makes recommendations about preventing work-related injuries and illnesses.

The Respiratory Health Division focuses on preventing work-related respiratory diseases and improving worker health. The Coal Workers Health Surveillance Program studies respiratory disease in miners and provides health screenings and information, particularly about black lung.

A Kanawha County coal miner named Harry Wiley filed federal suit on April 7 on behalf of himself and others potentially affected by the loss of the Coal Workers Health Surveillance Program. Wiley is represented by attorneys from organizations like Mountain State Justice and Appalachian Mountain Advocates.

The lawsuit noted that the federal mine safety statutes since 1969 have afforded American coal miners a medical screening and epidemiological surveillance program, along with a unique right to transfer to a non-dusty job if they begin developing early signs of occupational lung disease.

But on April 1, the U.S. human services agency fired top employees including the chief medical officer overseeing the coal mine dust lung disease screening program “thus jeopardizing miners — like the Plaintiff, Mr. Wiley — who seek to utilize these critical and time-sensitive protections from continued dust exposure and debilitating disease.”

Berger wrote of Wiley in her order, “Because the CWHSP is closed and its staff placed on leave pending their termination dates, he cannot access those services.”

Berger ordered that reduction in force notices in the NIOSH Respiratory Health Division be enjoined and rescinded to facilitate the full restoration of its functions including health surveillance through the Coal Workers Health Surveillance Program and the job transfer program.

Attorneys for the federal government had maintained the lawsuit should not go forward because it is not yet clear whether the NIOSH closure will actually take place. Those lawyers said the situation was still in flux and that duties under the black lung screening program could be transferred to another office.

Kennedy’s Health and Human Services agency announced on March 27 a restructuring in line with the administration’s Department of Government Efficiency initiatives.

Berger ruled that in the event of reorganization that there be “no pause, stoppage or gap in the protections and services mandated by Congress in the Mine Act and the attendant regulations for the health and safety of miners.”

The judge ordered that the secretary for Health and Human Services, Kennedy, submit written certification to the court within 20 days of the order that compliance is complete.

Kennedy is a scheduled presenter at a 9:30 a.m. Wednesday hearing before members of the U.S. House Appropriations Committee.

Congressman Riley Moore, R-W.Va., is a member of a subcommittee that Kennedy will be addressing, and Moore said on MetroNews Talkline that he will ask the secretary about the status of NIOSH.

“We are going to discuss this in my question session with him, publicly when we’re there in the hearing,” Moore said.

Congressman Moore and Senator Shelley Moore Capito, who is his aunt, announced late Tuesday morning that more than 100 federal workers at Morgantown NIOSH are being called back to work.

It was not clear at the time if their announcement was related to the federal order that came later in the day.

“My understanding from @SecKennedy is that over 100 Morgantown employees will be returning to the job permanently,” Capito posted on social media

“The health and safety of our WV workers, including our miners, is of the utmost importance and I will always advocate for their wellbeing.”