PRINTER'S NO. 1632
No. 1397 Session of 1987
INTRODUCED BY COHEN, HASAY, PETRONE, BOYES, PISTELLA, O'DONNELL,
LEVDANSKY, HUGHES, WESTON, TELEK, KOSINSKI, TRELLO, RYBAK,
STABACK, WAMBACH, PRESSMANN, McHALE, MICHLOVIC, VEON AND
FREEMAN, MAY 27, 1987
REFERRED TO COMMITTEE ON LABOR RELATIONS, MAY 27, 1987
AN ACT
1 Providing for the protection of the occupational health and
2 safety of employees of the government; conferring powers and
3 duties on the Department of Labor and Industry; creating
4 remedies; providing penalties; waiving sovereign immunity in
5 certain cases; making an appropriation; and making repeals.
6 TABLE OF CONTENTS
7 Section 1. Short title.
8 Section 2. Declaration of policy.
9 Section 3. Definitions.
10 Section 4. Application of health and safety standards.
11 Section 5. Public employers.
12 Section 6. Department.
13 Section 7. Board.
14 Section 8. Grants for a hazard abatement.
15 Section 9. Work environment inspectors.
16 Section 10. Committees.
17 Section 11. Work environment representative.
18 Section 12. Inspections.
1 Section 13. Recordkeeping.
2 Section 14. Adverse action against public employees.
3 Section 15. Right to work under safe conditions.
4 Section 16. Enforcement.
5 Section 17. Variances.
6 Section 18. Penalties.
7 Section 19. Right to sue.
8 Section 20. Appropriation.
9 Section 21. Severability.
10 Section 22. Repeals.
11 Section 23. Effective date.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. Short title.
15 This act shall be known and may be cited as the Public
16 Employee Occupational Safety and Health Act.
17 Section 2. Declaration of policy.
18 The General Assembly finds and declares as follows:
19 (1) It is a basic right of all employees to work in an
20 environment that is as free from hazards and risks to their
21 safety and health as possible.
22 (2) This right shall be afforded to public employees.
23 (3) Public employees should not be exposed to workplace
24 hazards more than other employees are exposed to workplace
25 hazards.
26 (4) To provide at least as much protection to public
27 employees as is provided to employees in the private sector
28 by OSHA, the standards and regulations under OSHA should be
29 adopted and applied to public employees.
30 (5) A significant percentage of employees in this
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1 Commonwealth are employed by the Commonwealth or by one of
2 its political subdivisions. Many of these public employees
3 perform job functions comparable to those performed by
4 workers in the private sector.
5 (6) Under OSHA, Congress deems it necessary to protect
6 the safety and health of workers employed in the private
7 sector. OSHA was enacted to "assure so far as possible every
8 working man and woman in the Nation safe and healthful
9 working conditions to preserve our human resources."
10 (7) The General Assembly is exercising its authority to
11 establish and enforce standards protecting the health and
12 safety of public employees.
13 (8) A safe place in which to work is economically
14 advantageous to employers. Work-related accidents and
15 injuries, and the absences caused thereby, decrease employee
16 productivity and increase workers' compensation costs. Unsafe
17 workplaces increase the risk of financial liability for
18 injuries to members of the public who frequent public
19 buildings. Occupational illness depletes the pool of human
20 resources and increases medical expenditures. For public
21 employees and their dependents, occupational accidents and
22 illnesses pose a serious threat to finances, security, and
23 mental and physical well-being.
24 (9) In an exercise of the police power, the department
25 is charged with the responsibility to ensure that public
26 employees are afforded a safe and healthful work environment.
27 Section 3. Definitions.
28 The following words and phrases when used in this act shall
29 have the meanings given to them in this section unless the
30 context clearly indicates otherwise:
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1 "Adverse action." An action by an employer which adversely
2 affects a worker with respect to terms or conditions of
3 employment or opportunity for promotion. The term includes
4 dismissal, layoff, suspension, demotion, transfer of job or
5 location, reduction in wages, changes in hours or conditions of
6 work and reprimand.
7 "Authorized employee representative." A public employee
8 authorized by the public employees to represent them. The term
9 includes a bargaining agent.
10 "Bargaining agent." An "employee organization," as defined
11 in section 301(3) of the act of July 23, 1970 (P.L.563, No.195),
12 known as the Public Employe Relations Act.
13 "Board." The Public Employees Occupational Safety and Health
14 Advisory Board established in section 7.
15 "Committee." A work environment committee established under
16 section 10.
17 "Department." The Department of Labor and Industry of the
18 Commonwealth.
19 "Harmful agent." An agent determined by the department to
20 present a risk to public employee health or safety or to present
21 an imminent danger to a public employee. The term includes
22 radiation, whether ionizing or nonionizing; stress; heat; cold;
23 noise; vibration; repetitive motion; hypobaric pressure;
24 hyperbaric pressure; poor illumination; poor ergonomic design;
25 dust; fumes; biological hazards, such as molds and allergens;
26 inadequate ventilation; and indoor air pollution. The department
27 shall consult the scientific literature and rely on
28 epidemiologic and case study reports brought to its attention in
29 making determinations for agents which are not generally
30 recognized as harmful agents.
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1 "Hazardous substance." A chemical or mixture defined as
2 hazardous under section 3 of the act of October 5, 1984
3 (P.L.734, No.159), known as the Worker and Community Right-to-
4 Know Act, and any other substance determined to be hazardous by
5 the department. The department shall consult the scientific
6 literature and rely on epidemiologic and case study reports
7 brought to its attention in making determinations for substances
8 not defined as hazardous under the Worker and Community Right-
9 to-Know Act.
10 "Imminent danger." A hazard or condition which could
11 reasonably be expected to cause death or serious physical harm
12 immediately or before the imminence of the danger can be
13 eliminated through the enforcement procedure under section 16.
14 "Infectious agent." Includes bacteria, viruses, fungi,
15 parasites, rickettsia and protozoa determined by the board or
16 the department to cause substantial acute or chronic illness or
17 permanent disability as a direct or indirect result of exposure
18 to the infectious agent by health and social services public
19 employees who make office or home visits and by public employees
20 whose workplaces include, but are not limited to, hospitals,
21 morgues, laboratories, clinics and prisons; homes or
22 institutions for the aged and the mentally, physically or
23 psychologically impaired; schools and day-care facilities;
24 shelter, zoos or other animal-handling operations; and water-
25 treatment and waste-treatment plants. The department shall
26 consult the scientific literature and rely on epidemiologic and
27 case study reports brought to its attention in making
28 determinations for agents which are not generally recognized as
29 infectious agents.
30 "Interested person." An affected person; a representative of
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1 an organization of public employers or public employees; a
2 nationally recognized standards producing organization; an
3 administrative agency; a professional organization concerned
4 with occupational safety or health; a representative of a public
5 interest organization; or a member of a department or college or
6 university engaged in research related to occupational safety or
7 health.
8 "Occupational safety and health specialist." An individual
9 who, because of professional or technical education, training or
10 experience, understands the health and safety risks and the
11 necessary precautions associated with the hazardous substances,
12 harmful agents, infectious agents and safety hazards which the
13 person is hired to address and to which public employees are
14 exposed. The department shall promulgate regulations specifying
15 criteria for education, training and experience.
16 "OSHA." The Occupational Safety and Health Act of 1970
17 (Public Law 91-956, 29 U.S.C. § 651 et seq.).
18 "Public employee." An individual who engages to furnish
19 services subject to the direction and control of a public
20 employer.
21 "Public employer." The Commonwealth; a political
22 subdivision; an authority, agency or instrumentality of the
23 Commonwealth or a political subdivision; a regional
24 transportation authority; and a multistate authority. The term
25 includes a person whose employees are not protected under OSHA
26 and who contracts to perform services for the Commonwealth; for
27 a political subdivision; for an authority, agency or
28 instrumentality of a political subdivision; or for a multistate
29 authority.
30 "Recognized hazard." A hazardous substance, harmful agent,
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1 infectious agent or safety hazard.
2 "Safety hazard." A hazard arising out of or encountered in
3 the course of employment that presents a risk to public employee
4 safety.
5 "Secretary." The Secretary of Labor and Industry of the
6 Commonwealth.
7 "Work environment inspector." An occupational safety and
8 health specialist charged with the enforcement of this act.
9 "Workplace." A building site, structure, mobile vehicle or
10 other premises or location, whether indoors or outdoors, in
11 which a public employee is engaged in work.
12 Section 4. Application of health and safety standards.
13 (a) General rule.--Except as provided in subsection (b),
14 safety or health regulations promulgated under this act apply to
15 public employers. The department may enforce this act and the
16 regulations.
17 (b) Exception.--This act and the regulations promulgated
18 under it do not apply to public employers who are covered by
19 OSHA.
20 Section 5. Public employers.
21 (a) Duties.--A public employer shall do all of the
22 following:
23 (1) Furnish, to its public employees, employment and a
24 workplace which are safe and healthful for the employees.
25 Employment and the workplace shall be free from recognized
26 hazards.
27 (2) Comply with the regulations promulgated under this
28 act. These requirements shall be included in all leases of
29 the public employer and in contracts with persons who provide
30 services to the public employer.
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1 (3) Assist the work environment inspector in the
2 performance of inspection duties by supplying or making
3 available information dealing with exposure reports, general
4 safety and health records, and other records required by this
5 act which are necessary to comply with the purposes and goals
6 of this act.
7 (4) Provide information to public employees, authorized
8 employee representatives and committee members in the
9 following ways, as prescribed by regulations:
10 (i) Posting information regarding protections and
11 obligations of public employees under occupational safety
12 and health laws at areas in the workplace easily
13 accessible to public employees.
14 (ii) Posting citations issued under this act
15 prominently at or near the place the violation referred
16 to occurred and at areas in the workplace easily
17 accessible to public employees.
18 (iii) Providing timely access to industrial hygiene
19 information and other surveys and reports. If a work
20 environment inspector or other representative of the
21 public employer is engaged in activities related to the
22 monitoring, measuring and other means of assessment
23 conducted to assess public employee exposure to hazards,
24 the work environment inspector or public employer
25 representative shall be accompanied by authorized
26 employee representatives and committee members under
27 section 12(g).
28 (iv) Allowing access by employees and their
29 representatives to accurate records of public employee
30 exposures to hazardous substances, infectious agents,
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1 harmful agents or safety hazards.
2 (v) Notifying a public employee who has been or is
3 being exposed to hazardous substances, harmful agents or
4 infectious agents and informing the public employee of
5 corrective action being taken.
6 (vi) Allowing access by public employees and
7 authorized employee representatives to relevant medical
8 records and posting a summary of relevant medical data in
9 a timely manner.
10 (5) Consult and work cooperatively with the committees
11 at the workplace for the purpose of resolving concerns on
12 matters of health, safety and welfare at the workplace. A
13 public employer is responsible for providing the committee
14 with information the employer receives under section 5 of the
15 act of October 5, 1984 (P.L.734, No.159), known as the Worker
16 and Community Right-to-Know Act, and for furnishing
17 information requested by the committee under section 5(d) of
18 the Worker and Community Right-to-Know Act and under this
19 act.
20 (6) Provide education and training for public employees
21 exposed to hazardous substances, harmful agents, infectious
22 agents and safety hazards with respect to the hazardous
23 substances, harmful agents, infectious agents and safety
24 hazards found in their workplace, under regulations
25 promulgated by the department. Public employees shall receive
26 normal wages and benefits from the public employer while
27 attending these programs. Additional instruction shall be
28 provided whenever the potential for exposure to hazardous
29 substances, harmful agents, infectious agents or safety
30 hazards is altered or whenever new information is received by
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1 the public employer concerning the hazardous substances,
2 harmful agents, infectious agents or safety hazards.
3 (b) Prohibitions.--A public employer may not do any of the
4 following:
5 (1) Occupy, maintain or permit a public employee to be
6 in a workplace that is not safe and healthful.
7 (2) Interfere with an inspection by a work environment
8 inspector.
9 Section 6. Department.
10 The department has the following powers and duties:
11 (1) Enforce this act, the regulation promulgated under
12 it and the standard adopted under it.
13 (2) Promulgate regulations, which are at least as
14 effective as OSHA standards, to administer this act.
15 Regulations on inspection shall provide that advance notice
16 of inspection may not be given except as expressly authorized
17 by the secretary and under circumstances set forth in
18 standards issued under OSHA.
19 (3) Either alone or in conjunction with the Workmen's
20 Compensation Appeal Board or the Department of Health,
21 prepare and maintain morbidity and accident statistics
22 relating to public employees.
23 (4) Provide assistance to persons concerned with
24 occupational health and safety and provide services to assist
25 committees, public employers and public employees in
26 maintaining standards for the protection of the health and
27 safety of public employees.
28 (5) Promote or conduct studies and research projects in
29 connection with problems relating to the health and safety of
30 public employees.
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1 (6) Conduct educational programs, including seminars and
2 courses of training for promoting the health and safety of
3 public employees and for improving the qualifications of
4 persons involved in the promotion of occupational health and
5 safety.
6 (7) Appoint advisory committees to assist in the
7 administration of this act.
8 (8) Make grants for the purposes mentioned in this
9 section.
10 (9) Promulgate a plan for the development and
11 enforcement of occupational safety and health standards with
12 respect to public employers and public employees.
13 (10) Adopt all standards promulgated under OSHA which
14 are in effect on the effective date of this act and adopt
15 standards under OSHA in the future. Interested persons may
16 petition the department to adopt standards under this
17 paragraph.
18 (11) Promulgate health and safety regulations for
19 hazardous substances, harmful agents, infectious agents and
20 safety hazards, regardless of whether standards and
21 regulations have been enacted or proposed by OSHA or other
22 Federal agencies or by State or local health codes.
23 Interested persons may petition the department to promulgate
24 regulations under this paragraph. No regulations shall be
25 promulgated for products distributed or used in interstate
26 commerce which (regulations) are different from Federal
27 standards for the products unless the regulations are
28 required by compelling local conditions and do not unduly
29 burden interstate commerce.
30 (12) In the event of an emergency or unusual situation,
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1 provide for emergency temporary regulations to take immediate
2 effect upon deposit with the Legislative Reference Bureau
3 under 1 Pa. Code § 13.74 (relating to effectiveness prior to
4 publication) if the department deems that public employees
5 are exposed to grave danger from exposure to substances or
6 agents determined to be toxic or physically harmful or from
7 new hazards and that the emergency temporary regulations are
8 necessary to protect public employees from the danger.
9 Emergency temporary regulations shall be in effect no longer
10 than 120 days. If emergency temporary regulations are renewed
11 in compliance with this section, they shall be in effect no
12 longer than 60 additional days. On or before the expiration
13 date of the emergency temporary regulations or renewal
14 thereof, the department shall promulgate regulations to
15 replace the emergency temporary regulations.
16 (13) Engage in inspections and investigations and take
17 necessary action to ensure compliance by public employers
18 with the provisions of this act, the regulations promulgated
19 under it and the standards adopted under it.
20 (14) Employ assistants, experts, work environment
21 inspectors, hearing officers, consultants, occupational
22 safety and health specialists, and other employees to carry
23 out the purposes of this act.
24 (15) Collect, maintain and make available to the board
25 the following statistics for each public employer:
26 (i) Number of inspections requested.
27 (ii) Number of inspections completed.
28 (iii) Number of citations issued and number of
29 violations involved.
30 (iv) Number and amount of penalties assessed.
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1 (16) Establish an asbestos abatement program which shall
2 include, but not be limited to, the following provisions:
3 (i) The department shall, within one year of the
4 effective date of this act, promulgate regulations
5 relating to and requiring the assessment of asbestos
6 hazards in workplaces and the development of an asbestos
7 hazard abatement plan for workplaces where asbestos
8 exists.
9 (ii) Public employers shall, within one year after
10 the promulgation of the regulations under subparagraph
11 (i), do all of the following:
12 (A) Conduct building inspections to determine
13 the presence of asbestos hazards in all workplaces.
14 Inspections shall be conducted by occupational safety
15 and health specialists.
16 (B) Maintain records of the findings.
17 (C) Notify the public employees, authorized
18 employee representatives and committees of the
19 results of inspections and release to these
20 individuals and groups the records from the
21 inspections. Members of the public shall have access
22 to the records of inspections of public buildings.
23 (iii) Where asbestos exists in a facility, the
24 public employer shall file an asbestos abatement plan
25 with the department within two years from the date of
26 promulgation of regulations under subparagraph (i). This
27 plan shall conform to the practices recommended by the
28 Environmental Protection Agency for abatement of
29 asbestos. This plan shall detail the relevant aspects of
30 abatement, including the methods of abatement, the time
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1 frame of abatement and the identity and qualifications of
2 professional asbestos abatement personnel involved in the
3 abatement. Abatement plans shall be subject to approval
4 of the committees at the affected locations. Nothing in
5 this subparagraph mandates the department to require the
6 removal of asbestos in workplaces where asbestos exists.
7 (17) Promulgate regulations that, within two years,
8 eliminate the use of asbestos brakes and clutch facings in
9 vehicles owned, leased or otherwise used by public employers.
10 (18) Promulgate regulations providing timely access to
11 industrial hygiene and other surveys and reports. The
12 regulations shall require public employers to provide the
13 opportunity for public employees and authorized employee
14 representatives to walk around with work environment
15 inspectors and the representatives of the public employer
16 engaged in activities related to the monitoring, measuring
17 and other means of assessment and to observe monitoring,
18 measuring and other means of assessment conducted to assess
19 public employee exposure to hazards pursuant to regulations
20 promulgated under this act.
21 (19) Promulgate regulations requiring proper work
22 procedures, public employee training and provision of
23 necessary vaccinations or inoculations at public employer
24 expense for a public employee regularly exposed to infectious
25 agents in the course of employment.
26 (20) Promulgate regulations requiring safe staffing
27 patterns for firefighting and correctional personnel and
28 individuals employed in mental health or mental retardation
29 facilities to insure the public safety and protect the health
30 and lives of the public employees performing those services.
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1 In order to carry out this paragraph, all of the following
2 apply:
3 (i) The secretary shall appoint a five-member
4 Firefighters Safety Advisory Committee, comprised of
5 members knowledgeable in fire safety, for the purposes of
6 recommending standards of adequate staffing levels which
7 will insure the safety of firefighting personnel covered
8 by this act. Before making its recommendations, the
9 committee shall consider factors such as community size,
10 population and building patterns. The committee shall
11 make its recommendations and deliver its final report not
12 later than one year after the effective date of this act.
13 The secretary shall review the report and promulgate
14 regulations within 90 days of receipt of the committee's
15 report.
16 (ii) The secretary shall appoint a five-member
17 Safety Advisory Committee for Correctional Facilities for
18 the purposes of recommending standards of adequate
19 staffing levels which will insure the safety of
20 correctional personnel covered by this act. The committee
21 shall make its recommendations and deliver its final
22 report not later than one year after the effective date
23 of this act. The secretary shall review the report and
24 promulgate regulations within 90 days of receipt of the
25 committee's report.
26 (iii) The secretary shall appoint a five-member
27 Safety Advisory Committee for Mental Health and Mental
28 Retardation Facilities for the purpose of recommending
29 standards of adequate staffing levels which will insure
30 the safety of public employees employed in such
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1 facilities covered by this act. The committee shall make
2 its recommendations and deliver its final report not
3 later than one year after the effective date of this act.
4 The secretary shall review the report and promulgate
5 regulations within 90 days of receipt of the committee's
6 report.
7 (21) Make reports to the United States Secretary of
8 Labor in the form and containing the information that the
9 Secretary of Labor requires.
10 (22) Promulgate regulations necessary for compliance
11 with the requirements of OSHA and the standards issued under
12 OSHA relating to the development and enforcement of State
13 plans for State and local government employers.
14 Section 7. Board.
15 (a) Purpose.--The Public Employees Occupational Safety and
16 Health Board is established as an advisory board to the
17 secretary to provide advice and assistance to the department in
18 fulfilling its responsibilities to administer and enforce this
19 act.
20 (b) Authority.--The authority of the board includes, but is
21 not limited to, the following:
22 (1) Recommending regulations for promulgation by the
23 department.
24 (2) Reviewing regulations proposed by the department.
25 (3) Reviewing records kept by the department.
26 (c) Membership.--One representative of labor:
27 (1) From lists submitted by appropriate authorized
28 employee representatives and one representative of management
29 shall be appointed from each of the following:
30 (i) State government.
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1 (ii) County government.
2 (iii) Municipal government.
3 (iv) Law enforcement.
4 (v) Fire service.
5 (vi) Correctional institutions.
6 (vii) State hospitals.
7 (viii) School boards.
8 (2) Four public members shall be appointed.
9 (d) Chairperson.--The board shall elect a chairperson from
10 among its members. The chairperson shall serve a term of two
11 years.
12 (e) Meetings.--The board shall meet at least every two
13 months. Ten members constitute a quorum.
14 (f) Compensation.--Members of the board shall serve without
15 compensation. They shall be reimbursed for necessary and
16 reasonable expenses incurred in the performance of their duties.
17 Section 8. Grants for a hazard abatement.
18 (a) General rule.--The department shall receive, review and
19 act upon applications for funding of capital projects designed
20 to abate occupational health and safety hazards. The secretary
21 may fund up to 75% of the cost of a capital abatement project
22 necessary to comply with an order issued by the secretary under
23 this act.
24 (b) Discretion.--The secretary may require, as part of an
25 application, necessary information. The secretary shall act upon
26 the application within a reasonable time. The secretary shall
27 furnish the Budget Secretary, the Auditor General, the President
28 pro tempore of the Senate and the Speaker of the House of
29 Representatives with a copy of each application within three
30 days following its receipt by the secretary.
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1 (c) Factors determining recipients of grants.--In
2 determining which applicants shall receive grants from the fund
3 and the amount of funding, the secretary shall consider the
4 following factors:
5 (1) The degree of possible physical harm which the
6 hazard to be abated could inflict on the public employees and
7 other citizens at risk.
8 (2) The imminent nature of the possible infliction of
9 harm.
10 (3) The number of public employees and other citizens at
11 risk.
12 (4) The ability of the applying public employer to fund
13 the capital abatement project out of its own funds.
14 (5) The total amount of debt for capital construction
15 projects for which the applying public employer is
16 responsible and the ability of the applying public employer
17 to meet its annual debt.
18 (d) Duty to abate violation.--The fact that a public
19 employer has applied for funds under this act does not relieve
20 that employer of the obligation to abate a violation of this
21 act.
22 Section 9. Work environment inspectors.
23 (a) Appointment.--The secretary shall hire work environment
24 inspectors under the act of August 5, 1941 (P.L.752, No.286),
25 known as the Civil Service Act, to enforce this act.
26 (b) Duties.--Work environment inspectors have the following
27 powers and duties:
28 (1) With or without prior notification, but in
29 accordance with regulations under section 6(2), to enter and
30 inspect a workplace, take samples and photographs and make
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1 examinations necessary to accomplish the purposes and goals
2 of this act. If entry is denied, the work environment
3 inspector shall notify the secretary. The secretary may
4 secure an order compelling entry by petitioning the
5 Commonwealth Court to grant the petition upon a showing that
6 entry has been denied.
7 (2) To require the employer to produce, for inspection
8 by the work environment inspector, books, records, documents
9 or other material maintained by the public employer to assist
10 the inspector in making determinations and in enforcing this
11 act.
12 (3) To conduct private interviews with, or solicit
13 statements from, public employees.
14 (4) To perform duties authorized by the secretary.
15 (c) Coverage.--Work environment inspectors are entitled to
16 benefits under the act of June 28, 1935 (P.L.477, No.193),
17 referred to as the Enforcement Officer Disability Benefits Law.
18 (d) Cooperation.--Work environment inspectors shall
19 cooperate with the committees.
20 Section 10. Committees.
21 (a) Purpose and establishment.--To assure that the health
22 and safety of the public employees are protected, work
23 environment committees, consisting of representatives of public
24 employees and public employers, shall be established. Nothing in
25 this section shall diminish the public employer's responsibility
26 to assure a safe and healthful work environment.
27 (b) Formation.--A public employer, except as provided in
28 subsection (c), shall cause a work environment committee to be
29 established:
30 (1) at a workplace where at least 25 or more public
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1 employees are regularly employed; and
2 (2) at an individual workplace or at classes of
3 workplaces which the secretary may designate.
4 (c) Exemption.--
5 (1) The secretary may designate individual workplaces or
6 classes of workplaces where a work environment committee is
7 not required to be established until the number of employees
8 exceeds 50.
9 (2) Public employers who employ more than 400 public
10 employees employed at more than 15 workplaces maintained by
11 the employer may apply to the secretary for a modification of
12 the requirements of subsection (b). It shall be the public
13 employer's responsibility to submit, for the secretary's
14 approval, an alternative plan for the formation of
15 committees. The plan shall conform to the intent of this
16 section. In considering the alternative plan of a public
17 employer, the secretary shall solicit and consider
18 evaluations of the plan from the authorized employee
19 representative.
20 (d) Small units.--Public employers who employ less than 25
21 public employees, regardless of the number of workplaces
22 maintained by the public employer, shall cause one public
23 employee to be designated as a work environment representative.
24 The work environment representative shall represent public
25 employees of the public employer employed at all workplaces.
26 (e) Membership.--
27 (1) A committee shall consist of not less than 4 nor
28 more than 12 members, as follows:
29 (i) For 25 through 100 employees - four members.
30 (ii) For 101 through 400 employees - six members.
19870H1397B1632 - 20 -
1 (iii) For each 100 employees beyond 400 - two
2 additional members. Additional members under this
3 subparagraph may not exceed 12.
4 (2) Membership shall be equally divided between public
5 employee-selected members and public employer-selected
6 members.
7 (3) Public employee members of committees shall be
8 appointed by the bargaining agent for the employees at the
9 workplace. If there is more than one bargaining agent,
10 employee members shall be selected from the three largest
11 bargaining agents in accordance with regulations promulgated
12 by the department. If there is no bargaining agent, the
13 public employees shall select an authorized employee
14 representative to perform the function of the bargaining
15 agent under this paragraph.
16 (4) The public employer shall post prominently in the
17 workplace the names of the committee members.
18 (f) Powers and duties.--Committees have the following powers
19 and duties:
20 (1) Regularly inspect the workplace to identify safety
21 hazards and to check for compliance with the general intent
22 of this act and the regulations promulgated under it.
23 (2) Receive, consider and dispose of concerns and
24 complaints with respect to the safety and health of the
25 public employees.
26 (3) Maintain records in connection with the receipt and
27 disposition of concerns and complaints and other committee
28 activities.
29 (4) Investigate imminent danger situations, accidents
30 and unusual environmental conditions.
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1 (5) When it determines that an imminent danger exists,
2 order the dangerous activity to cease and request the
3 immediate presence of a work environment inspector. Once
4 activity has ceased, it may not resume until the work
5 environment inspector deems it safe. An affected party may
6 appeal the determination of the work environment inspector to
7 the board. If the entire committee is unavailable, either of
8 the co-chairpersons of the committee may take action under
9 this paragraph.
10 (6) Review health and safety records to monitor
11 incidents of accidents and illnesses and to identify problem
12 areas.
13 (7) Develop and promote measures to protect the safety,
14 health and welfare of individuals in the workplace and to
15 check the effectiveness of those measures.
16 (8) Cooperate with a work environment inspector
17 exercising duties under this act.
18 (9) Develop and promote programs for education and
19 information concerning safety and health in the workplace.
20 (10) Receive from the employer, at least 60 days in
21 advance of implementation, notice concerning a change in
22 workplace technology or process or an introduction into the
23 workplace of a hazardous substance, harmful agent, infectious
24 agent or safety hazard.
25 (11) Develop medical testing for work-related illnesses
26 or disabilities which may arise out of or in the course of
27 employment, including illnesses or disabilities resulting
28 from or contributed to by exposure to hazardous substances,
29 harmful agents, infectious agents or safety hazards. The
30 board shall promulgate regulations necessary to protect the
19870H1397B1632 - 22 -
1 confidentiality of public employees under this paragraph.
2 (g) Committee business.--Members of committees shall suffer
3 no loss in wages, benefits or seniority for time spent on
4 committee business.
5 (h) Meetings.--
6 (1) Committees shall hold regular meetings at least once
7 each month. The meetings of a committee shall be held during
8 ordinary working hours unless otherwise agreed upon.
9 Additional meetings shall be held as necessary.
10 (2) There shall be two committee co-chairpersons, one
11 selected by public employee members of the committee and one
12 selected by public employer members of the committee.
13 (3) Decisions shall be made by a majority of committee
14 members present and voting. In case of a deadlock, a work
15 environment inspector shall be called in to resolve the
16 issue.
17 (4) Minutes of the meetings shall be taken, and the
18 approval of each co-chairperson shall be indicated by
19 signature.
20 (5) A copy of the minutes shall be posted prominently in
21 the workplace.
22 (i) Training.--Committee members shall be entitled to not
23 less than 24 hours of occupational health and safety training
24 annually. Training shall be provided at public employer expense.
25 The form, nature and location of the training shall be approved
26 by the committee. Participating public employees shall receive
27 their regular rate of pay and benefits while attending training.
28 (j) Nonliability.--The bargaining agents, authorized
29 employee representatives and committees and committee members
30 shall not be held liable for work-connected injuries,
19870H1397B1632 - 23 -
1 disabilities or diseases which may be incurred by public
2 employees.
3 Section 11. Work environment representative.
4 (a) Designation.--A public employer shall cause a public
5 employee to be designated as the work environment
6 representative:
7 (1) at a workplace where a committee is not required but
8 where five or more employees are regularly employed; and
9 (2) at an individual workplace or classes of workplace
10 which the board may designate.
11 (b) Appointment.--
12 (1) The work environment representative shall be
13 appointed by the bargaining agent for the public employees at
14 the workplace. If there is more than one bargaining agent,
15 the work environment representative shall be appointed by the
16 largest bargaining agent. If there is no bargaining agent,
17 the public employees shall elect the work environment
18 representative.
19 (2) The employer shall post prominently in the workplace
20 the name of the work environment representative.
21 (c) Powers and duties.--The work environment representative
22 shall, in cooperation with a representative of the public
23 employer, perform the same duties and have the same powers as
24 the committee under section 10(f).
25 (d) Training.--A work environment representative shall be
26 entitled to a minimum of 24 hours of occupational health and
27 safety training annually. Training shall be provided at public
28 employer expense. The form, nature and location of the training
29 shall be acceptable to the representative who receives it.
30 (e) Nonliability.--The work environment representative shall
19870H1397B1632 - 24 -
1 not be liable for a work-connected injury, disability or disease
2 which may be incurred by a public employee.
3 Section 12. Inspections.
4 (a) Request for inspection.--A person who believes that a
5 violation of a safety or health regulation exists or that there
6 is a threat of harm to a public employee's health or safety may
7 request an inspection by giving notice to the department of the
8 violation or danger.
9 (b) Manner of request.--Requests for inspections may be made
10 orally or in writing and shall set forth the grounds for the
11 request. The department shall, upon request of the complaining
12 party, keep confidential the name of the person making the
13 complaint.
14 (c) Action on request.--If the department receives a request
15 for inspection of an imminent danger or if the department is
16 aware of the likelihood of an imminent danger, an inspection
17 shall be made immediately. In other cases inspections shall be
18 made as soon as possible, but at least within 72 hours if the
19 department determines that there are reasonable grounds to
20 believe a recognized hazard exists. If the department determines
21 there are no reasonable grounds to believe that a recognized
22 hazard exists, the department shall notify the public employees
23 or authorized employee representative, in writing, of a
24 determination within five days of a request for an inspection.
25 The department shall provide a copy of the inspection report and
26 orders or agreements made to the individual making the
27 complaint, to the authorized employee representative, to the
28 committee and to the public employer. Prior to or during an
29 inspection of a workplace, public employees or authorized
30 employee representatives employed in the workplace may notify
19870H1397B1632 - 25 -
1 the department, in writing, of a violation of this act which
2 they have reason to believe exists in the workplace. The
3 secretary shall, by regulation, establish procedures for
4 informal review of refusal by the department to perform an
5 inspection or issue a citation with respect to an alleged
6 violation and shall furnish the public employee or authorized
7 employee representative requesting review with a written
8 statement of the reasons for the secretary's final disposition
9 of the case.
10 (d) Inspection without notice.--Advance notice of
11 inspections may not be given except as expressly authorized by
12 the secretary and under the circumstances set forth in standards
13 issued under OSHA.
14 (e) Accessibility of locations.--Work environment inspectors
15 shall have immediate access to any location in which there is a
16 suspected imminent danger or safety hazard for the purposes of
17 conducting an inspection.
18 (f) Intermittent inspections.--The department shall
19 determine those occupations and workplaces where there is a
20 possibility of health or safety hazards to public employees or
21 the public and shall conduct regular unannounced inspections, in
22 accordance with regulations under section 6(2), of these
23 workplaces.
24 (g) Escort of inspector.--A representative of the public
25 employer and an authorized employee representative shall
26 accompany the work environment inspector for the entire
27 inspection whenever the inspector conducts an inspection under
28 this act. The committee may designate one committee member to
29 accompany the work environment inspector, the representative of
30 the public employer, and the authorized employee representative
19870H1397B1632 - 26 -
1 on parts of the inspection which address work areas and
2 processes of which the committee member or committee members
3 have first-hand knowledge. The authorized employee
4 representatives and designated committee members shall attend
5 the opening, interim and closing conferences pertaining to the
6 inspection. Authorized employee representatives and committee
7 members shall receive full employment benefits for all time
8 spent on these activities.
9 (h) Inspection regardless of complaint.--The authority of
10 the department to inspect a workplace pursuant to a public
11 employee complaint shall not be limited to the alleged violation
12 contained in the complaint. The department may inspect any other
13 areas of the workplace.
14 Section 13. Recordkeeping.
15 (a) Records required.--In accordance with regulations, a
16 public employer shall make, maintain and make available to the
17 department such records regarding its activities relating to
18 this act as the department deems necessary or appropriate for
19 developing information regarding the causes and prevention of
20 occupational accidents and illnesses. The regulations may
21 include provisions requiring public employers to conduct
22 periodic inspections. The department shall also issue
23 regulations requiring that public employers, through posting of
24 notices, training or other appropriate means, keep their public
25 employees informed of their rights to protection.
26 (b) Medical problems.--The department shall promulgate
27 regulations requiring public employers to maintain accurate
28 records and to make public monthly reports and annual summaries
29 of work-related deaths, injuries, illnesses, medical treatment,
30 loss of consciousness, assaults on public employees,
19870H1397B1632 - 27 -
1 restrictions of work or motion, or transfers to other jobs.
2 Public employers, authorized employee representatives and the
3 committee shall, upon request, have the right to examine and
4 copy reports under this subsection.
5 (c) Exposure.--The department shall promulgate regulations
6 requiring public employers to maintain accurate records of
7 public employee exposures to hazardous substances, harmful
8 agents, infectious agents and safety hazards. The regulations
9 shall make appropriate provisions for public employees or former
10 employees to have access to exposure records. A public employer
11 shall immediately notify a public employee who has been or is
12 being exposed to hazardous substances, harmful agents or
13 infectious agents. Public employees shall be informed by the
14 public employer of the corrective action proposed and the time
15 limit for implementation and shall immediately be scheduled for
16 participation in the medical surveillance program.
17 Section 14. Adverse action against public employees.
18 (a) Prohibition.--No adverse action may be taken against a
19 public employee by reason of the public employee's participation
20 in or association with functions of a committee, by reason of
21 the public employee's inquiry about or utilization of rights or
22 responsibilities under this act or for other reasons having to
23 do with exercising rights granted under this act.
24 (b) Presumption.--If an adverse action is taken against a
25 public employee who has, in the prior 12 months, been involved
26 with the enforcement or protection of rights granted under this
27 act, it shall be presumed that the action was taken in violation
28 of this act. It shall be the burden of the public employer to
29 prove that the action was not taken for improper reasons
30 described in subsection (a) or for reasons otherwise contrary to
19870H1397B1632 - 28 -
1 the policies and provisions of this act.
2 (c) Remedy.--If a public employee believes that adverse
3 action has been taken against the public employee in violation
4 of this section, the public employee may file a complaint with
5 the department. The complaint must be filed within 180 days
6 after the public employee becomes aware of the adverse action.
7 Upon receipt of the complaint, the department shall make an
8 investigation within 30 days. Upon request of the complainant,
9 the department shall keep the complainant's name confidential.
10 If the department determines that this section has been
11 violated, it shall bring an action in Commonwealth Court against
12 the public employer. Commonwealth Court may, in addition to
13 other remedies at law or in equity, order the public employer
14 to:
15 (1) Cease the adverse action and reinstate the public
16 employee to former employment without loss of wages, benefits
17 or seniority.
18 (2) Remove reprimands or other references to the matter
19 from the personnel records of the public employee.
20 (3) Compensate the public employee for wages, benefits
21 and seniority lost because of the adverse action.
22 Section 15. Right to work under safe conditions.
23 (a) General rule.--
24 (1) A public employee may not be compelled to work at a
25 workplace if all of the following apply:
26 (i) A reasonable individual would believe, in good
27 faith, that performing assigned work at the workplace
28 would involve a danger of death or serious injury or
29 illness.
30 (ii) The public employee is unable to obtain
19870H1397B1632 - 29 -
1 correction of the condition by the public employer.
2 (iii) There is insufficient time to eliminate the
3 danger through resort to regular statutory or contractual
4 enforcement procedures.
5 (2) If paragraph (1) applies, a public employee may
6 refuse to perform assigned duties in the workplace until the
7 work environment inspector has investigated the matter and
8 advised the public employee, in writing, that a hazard no
9 longer exists.
10 (b) Temporary assignments.--If there is temporary assignment
11 to alternative work under subsection (a), there shall be no loss
12 of pay, benefits or seniority to the public employee until the
13 matter is resolved. Temporary assignment under this subsection
14 does not constitute adverse action under section 14.
15 Section 16. Enforcement.
16 (a) Orders.--If the secretary or a work environment
17 inspector determines that a public employer has violated this
18 act or a regulation promulgated under it, the secretary shall,
19 within seven days, issue an order to the public employer. The
20 citation shall describe particularly the nature of the
21 violation, refer to the statutory or regulatory provision
22 alleged to have been violated and state corrective action
23 required. The secretary shall fix a reasonable time for
24 compliance, not to exceed 72 hours, unless the public employer
25 can demonstrate to the secretary that the violation cannot be
26 remedied within that time.
27 (b) Imminent danger.--If a work environment inspector
28 determines that there is an imminent danger, the work
29 environment inspector shall require that the work cease. The
30 work environment inspector may stop activities in the vicinity
19870H1397B1632 - 30 -
1 of the imminent danger if necessary to protect the health and
2 safety of other individuals. The work environment inspector
3 shall order the immediate abatement of the dangerous situation.
4 Before the public employer may recommence the activities, the
5 work environment inspector must certify that the public employer
6 has come into compliance with this act.
7 (c) Posting of citation.--If the secretary issues a
8 citation, the public employer shall post the citation or a copy
9 of the citation in a conspicuous place, at or near each place of
10 violation cited in the citation. The department shall furnish
11 copies of the citation to authorized employee representatives
12 and the committee.
13 (d) Appeals.--A party affected by a citation may petition
14 Commonwealth Court for review of the determination. The petition
15 must be brought within 120 days of the issuance of the citation.
16 The citation shall remain in force and effect during pendency of
17 an appeal.
18 (e) Proceedings by secretary.--If the time for compliance
19 with a citation has elapsed and the employer has not complied
20 with the citation, the department shall commence proceedings in
21 Commonwealth Court to enforce the order and shall levy
22 additional fines and penalties under section 16.
23 (f) Failure of department to act.--If the department fails
24 to seek relief under this section within five days of being
25 notified of the condition, a public employee who may be injured
26 by reason of the failure, the authorized employee representative
27 or the committee may seek injunctive relief or other appropriate
28 remedies. If the action is successful, the public employer shall
29 pay the costs and legal fees of the petitioning parties.
30 (g) Injunctive relief.--The Commonwealth Court may, upon
19870H1397B1632 - 31 -
1 petition of the department or an affected party, restrain
2 conditions or practices which could be expected to cause death
3 or physical harm. An order issued under this subsection may
4 require steps to be taken as necessary to avoid, correct or
5 remove an imminent danger and prohibit the employment or
6 presence of an individual in locations or under conditions where
7 an imminent danger exists. An order under this subsection shall
8 not apply to individuals whose presence is necessary to avoid,
9 correct or remove the imminent danger or to maintain the
10 capacity of a continuous-process operation to resume normal
11 operations without a complete cessation of operations or, where
12 a cessation of operations is necessary, to permit it to be
13 accomplished in a safe and orderly manner.
14 (h) Follow-up inspection.--If, at the time of or after
15 inspection or investigation, the secretary issues a citation for
16 a violation, the department shall conduct a reinspection at the
17 end of the period fixed for abatement of the violation. A public
18 employer shall not be given advance warning of a reinspection by
19 the department.
20 Section 17. Variances.
21 (a) Application.--A public employer may apply to the
22 secretary for a temporary order granting an exception from a
23 regulation or standard promulgated or adopted under this act.
24 The temporary order may be granted only if the public employer
25 files an application which meets the requirements of this
26 section and establishes all of the following:
27 (1) The public employer is unable to comply with a
28 regulation by its effective date because of the
29 unavailability of professional or technical personnel or of
30 materials and equipment needed to come into compliance with
19870H1397B1632 - 32 -
1 the regulation or because necessary construction or
2 alteration of facilities cannot be completed by the effective
3 date.
4 (2) The public employer is taking all available steps to
5 safeguard public employees against the hazards covered by the
6 regulation.
7 (3) The public employer has an effective program for
8 coming into compliance with the regulation as quickly as
9 possible.
10 (b) Temporary orders.--A temporary order issued under this
11 section shall prescribe the practices, means, methods,
12 operations and processes which the public employer must adopt
13 and use while the order is in effect, and state in detail
14 compliance requirements. The temporary order may be granted only
15 after notice to public employees, authorized employee
16 representatives and the committee, and after an opportunity for
17 a hearing. The secretary may issue one interim order, to be
18 effective until a decision is made on the basis of the hearing.
19 A temporary order shall not be in effect for longer than the
20 period needed by the public employer to achieve compliance with
21 the regulation or one year, whichever is shorter. A temporary
22 order may be renewed not more than twice if the requirements of
23 this section are met and if an application for renewal is filed
24 at least 90 days prior to the expiration date of the temporary
25 order. Renewal of an order shall remain in effect no longer than
26 180 days.
27 (c) Contents of application for temporary order.--An
28 application for a temporary order shall contain all of the
29 following:
30 (1) A specification of the regulatory provision from
19870H1397B1632 - 33 -
1 which the public employer seeks a variance.
2 (2) A representation by the public employer, supported
3 by representations from qualified persons who have first-hand
4 knowledge of the facts represented, that the public employer
5 is unable to comply with the regulation and a detailed
6 statement of the reasons for the inability to comply.
7 (3) A statement of the steps the public employer has
8 taken and will take, with dates specified, to protect public
9 employees against the hazard covered by the regulation.
10 (4) A statement of when the public employer expects to
11 be able to comply with the regulation and what steps the
12 public employer has taken and will take, with dates
13 specified, to come into compliance with the regulation.
14 (5) A certification that the public employer has
15 informed its public employees of the application and their
16 right to a hearing under subsection (b) by giving a copy of
17 the application to the authorized employee representative and
18 the committee, by posting a statement giving a summary of the
19 application and specifying where a copy may be examined at
20 the place where notices to public employees are normally
21 posted, and by other appropriate means.
22 (d) Variance rule.--Affected public employees shall be given
23 notice of an application for a variance and an opportunity to
24 participate in a hearing. The secretary shall issue an order if
25 the secretary determines, on the record, after opportunity for
26 an inspection, where appropriate, that the proponent of the
27 variance has demonstrated by a preponderance of the evidence
28 that the conditions, practices, means, methods, operations or
29 processes used or proposed to be used by a public employer will
30 provide employment and workplaces which are as safe and
19870H1397B1632 - 34 -
1 healthful as those which would prevail if the public employer
2 complied with the regulation. The order shall prescribe the
3 conditions the public employer must maintain and the practices,
4 means, methods, operations and processes which the public
5 employer must adopt and utilize to the extent that they differ
6 from the regulation in question. An order may be modified or
7 revoked upon application by a public employer, a public
8 employee, an authorized employee representative or the
9 department, in the manner prescribed for issuance of the order
10 under this section, within six months from its issuance.
11 (e) Limitation of action.--A person who is adversely
12 affected by an order under this section may petition
13 Commonwealth Court for review of the determination. The petition
14 must be brought within 120 days of the issuance of the order.
15 Section 18. Penalties.
16 (a) Civil penalties.--The secretary may assess the penalties
17 set forth in this subsection, giving consideration to the
18 appropriateness of the penalty with respect to the size of the
19 public employer being charged, the gravity of the violation, the
20 good faith of the public employer and the history of previous
21 violations. Penalties collected shall be deposited in a fund
22 maintained, administered and distributed by the board for the
23 administration of this act. Penalties are as follows:
24 (1) Except as provided in paragraph (3) or (4), a public
25 employer who violates section 5, a regulation or order
26 promulgated or issued under this act or a standard adoption
27 under this act may be assessed a civil penalty of not more
28 than $1,000 for each violation.
29 (2) In addition to the penalties provided in paragraphs
30 (3) and (4):
19870H1397B1632 - 35 -
1 (i) A public employer who willfully or repeatedly
2 violates section 5, a regulation or order promulgated or
3 issued under this act or a standard adopted under this
4 act may be assessed a civil penalty of not more than
5 $10,000 for each violation.
6 (ii) A public employer who fails to correct a
7 violation for which a citation has been issued within the
8 period permitted for its correction may be assessed a
9 civil penalty of not more than $1,000 for each day during
10 which the violation continues.
11 (3) A public employer who commits a serious violation of
12 section 5, a regulation or order promulgated or issued under
13 this act or a standard adopted under this act shall be
14 assessed a civil penalty of not more than $1,000 for each
15 violation. For purposes of this paragraph, a serious
16 violation shall be deemed to exist in a workplace if there is
17 a substantial probability that death or serious physical harm
18 could result from a condition which exists or from one or
19 more practices, means, methods, operations or processes which
20 have been adopted or are in use unless the public employer
21 did not and could not, with the exercise of reasonable
22 diligence, know of the presence of the violation.
23 (4) A public employer who violates posting requirements
24 prescribed or established under this act shall be assessed a
25 civil penalty of not more than $1,000 for each violation.
26 (b) Criminal penalties.--Criminal penalties are as follows:
27 (1) If a person intentionally violates this act or a
28 regulation or order promulgated or issued under this act and
29 if the violation causes the death of a public employee, the
30 person commits a misdemeanor of the third degree and shall:
19870H1397B1632 - 36 -
1 (i) Upon conviction for the first offense, be
2 sentenced to pay a fine of not more than $10,000 or to
3 imprisonment for not more than six months, or both.
4 (ii) Upon conviction for a subsequent offense, be
5 sentenced to pay a fine of not more than $20,000 or to
6 imprisonment for not more than one year, or both.
7 (2) A person who, without authority from the secretary,
8 gives advance notice of an inspection to be conducted under
9 this act commits a misdemeanor of the third degree and shall,
10 upon conviction, be sentenced to pay a fine of $1,000 or to
11 imprisonment for not more than six months, or both.
12 (3) A person who knowingly makes a false statement,
13 representation or certification in an application, record,
14 report, plan or other document filed or required to be
15 maintained under this act commits a misdemeanor of the third
16 degree and shall, upon conviction, be sentenced to pay a fine
17 of $10,000 or to imprisonment for not more than six months,
18 or both.
19 Section 19. Right to sue.
20 (a) Standing.--A public employer, public employee or
21 interested party may bring a civil action on the person's own
22 behalf against a public employer for a violation of this act or
23 of a regulation promulgated under this act or against the
24 department for failure to enforce this act or a regulation
25 promulgated under this act.
26 (b) Costs and fees.--In an action under subsection (a), a
27 court of competent jurisdiction may award costs of litigation,
28 including reasonable attorney and expert witness fees.
29 (c) Waiver of sovereign immunity.--This section constitutes
30 a waiver of sovereign immunity for the purpose of 1 Pa.C.S. §
19870H1397B1632 - 37 -
1 2310 (relating to sovereign immunity reaffirmed; specific
2 waiver).
3 Section 20. Appropriation.
4 The sum of $3,000,000, or as much thereof as may be
5 necessary, is hereby appropriated to the Department of Labor and
6 Industry for the fiscal year July 1, 1987, to June 30, 1988, to
7 carry out the provisions of this act.
8 Section 21. Severability.
9 The provisions of this act are severable. If any provision of
10 this act or its application to any person or circumstance is
11 held invalid, the invalidity shall not affect other provisions
12 or applications of this act which can be given effect without
13 the invalid provision or application.
14 Section 22. Repeals.
15 The following acts and parts of acts are repealed insofar as
16 they are inconsistent with this act:
17 Section 8522 of Title 42 of the Pennsylvania Consolidated
18 Statutes (relating to exceptions to sovereign immunity).
19 Section 8541 of Title 42 of the Pennsylvania Consolidated
20 Statutes (relating to governmental immunity generally).
21 Section 23. Effective date.
22 This act shall take effect in 60 days.
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