Lawyers for the federal government have filed a court-ordered certification that jobs focused on black lung screening at the National Institute for Occupational Safety and Health have been restored.
However, that filing includes a bottom line that the agency still is not able to fully perform support for black lung screening — including contracting for work on chest X-rays, communicating to promote black lung screening events and reliably funding the work of black lung screening.
U.S. District Judge Irene Berger last month granted a preliminary injunction to reverse federally ordered job cuts endangering legally required black lung screening.
The judge ordered that the secretary for Health and Human Services, Robert F. Kennedy Jr., submit written certification to the court within 20 days of the order that compliance is complete.
Lawyers representing the agency did so on Monday, the day of the deadline, saying reduction in force notifications for the Respiratory Health Division of the National Institute of Occupational Safety and Health have been rescinded.
In the event of the reorganization of the Respiratory Health Division under the Make America Health Again initiatives, the Department of Health and Human Services will still comply with Berger’s order, wrote lawyers for the federal government, “and there will be no pause, stoppage, or gap in the protections and services.”
Hundreds of workers at NIOSH, including the facility in Morgantown, were informed earlier this year that they would lose their jobs in line with the administration’s Department of Government Efficiency initiatives. NIOSH 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.
That work has been taking place at NIOSH in Morgantown.
Last month, Kennedy confirmed the return of 110 workers to various roles at NIOSH in Morgantown.
The Respiratory Health Division, Division of Safety Research and National Personal Protective Technology Laboratory were brought back.
More than a hundred more workers in other roles have not returned.
Monday’s filing on behalf of the federal government includes a written statement from John Howard, director of the National Institute for Occupational Safety and Health.
His statement included a timeline of the reduction in force notices and reversals. Howard said most employees who were with Respiratory Health prior to April 1, except those who made their own decisions to leave, have returned to work at NIOSH.
And, he said, “After NIOSH RHD employees received notices that their RIF notices were revoked, NIOSH removed a banner from its website saying the CWHSP is paused, and the Program is again accepting submission of chest X-rays and spirometry tests and “other information” such as the most recent information Mr. Wiley provided to the program.”
His statement said NIOSH is working through the Centers for Disease Control & Prevention and HHS chain of command to fully restore the Respiratory Health operations including restoring and establishing contracts needed to carry out the agency’s mission.
For instance, that means maintaining contracts with physicians who classify chest x-rays, contracts to maintain x-ray image software needed to view and manage chest x-rays and contracts for x-ray technicians who participate in the black lung screening mobile unit and provide chest x-rays across multiple mining shifts during a mobile unit survey.
Howard wrote that more progress must be made to get communications up and running — for example, the necessity to communicate with miners, mine operators and media outlets to plan and promote black lung screening mobile unit surveys.
And he said the Respiratory Health Division still needs the ability to efficiently expend funds to carry out responsibilities under the federal Mine Act. In other words, the division needs to have funding to commit to and plan its outreach activities at various locations.
The lawyers representing Wiley and other miners in similar situations responded to today’s filing with concern about those functions that NIOSH appears unable to resume so far.
“We have concerns it does not appear all the programs and services mandated by the Mine Act within NIOSH are functioning as they were before the DOGE RIFs,” said Sam Petsonk, a lawyer for Wiley. “We are considering our options.”