PRINTER'S NO. 1372
No. 1166 Session of 1985
INTRODUCED BY LEVIN, COHEN, PERZEL, TELEK, BURNS, BELFANTI,
RYBAK, HARPER, PISTELLA, EVANS, WESTON, KOSINSKI, DONATUCCI,
CESSAR, STEWART, DEAL, FREEMAN, BOYES AND GANNON, MAY 8, 1985
REFERRED TO COMMITTEE ON LABOR RELATIONS, MAY 8, 1985
AN ACT
1 Relating to the protection of the occupational health and safety
2 of public employees; providing penalties; and making an
3 appropriation.
4 TABLE OF CONTENTS
5 Section 1. Short title.
6 Section 2. Declaration of policy.
7 Section 3. Definitions.
8 Section 4. Application of health and safety standards.
9 Section 5. Employer's duties.
10 Section 6. The Work Environment Board.
11 Section 7. Grants for hazard abatement.
12 Section 8. Work environment inspectors.
13 Section 9. Work environment committees.
14 Section 10. Inspections.
15 Section 11. Recordkeeping.
16 Section 12. Adverse action against employees.
17 Section 13. Right to refuse unsafe work.
18 Section 14. Rights of affected employees.
1 Section 15. Enforcement.
2 Section 16. Variances.
3 Section 17. Civil penalties.
4 Section 18. Criminal penalties.
5 Section 19. Employee's right to initiate legal action.
6 Section 20. Appropriation.
7 Section 21. Effective date.
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. Short title.
11 This act shall be known and may be cited as the Public
12 Employee Occupational Safety and Health Act.
13 Section 2. Declaration of policy.
14 (a) Declaration.--The General Assembly declares that it is a
15 basic right of all employees to work in an environment that is
16 as free from hazards and risks to their safety and health as is
17 possible. It is the intent of the General Assembly to ensure
18 that this right is afforded to all employees of the
19 Commonwealth, its counties, cities, incorporated towns,
20 boroughs, and other public employers who serve the people of
21 this Commonwealth.
22 (b) Finding.--A significant percentage of all of those
23 employed in this Commonwealth are employed by the Commonwealth
24 or by one of its political subdivisions. Many of these public
25 employees perform job functions comparable to those performed by
26 workers in the private sector. In the Occupational Safety and
27 Health Act of 1970 (Public Law 91-596, 29 U.S.C. § 651 et seq.),
28 Congress deemed it necessary to protect the safety and health of
29 workers employed in the private sector. The Occupational Safety
30 and Health Act of 1970 was enacted to "assure so far as possible
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1 every working man and woman in the Nation safe and healthful
2 working conditions to preserve our human resources." The General
3 Assembly of the Commonwealth of Pennsylvania hereby exercises
4 its statutory authority to establish and enforce standards and
5 regulations protecting the health and safety of all employees of
6 Pennsylvania State or local governments and their subdivisions.
7 (c) Economic factors.--The General Assembly has further
8 determined that a safe place in which to work is economically
9 advantageous to employers. Work-related accidents and injuries,
10 and the absences caused thereby, decrease employee productivity
11 and increase workers' compensation costs. Unsafe premises
12 increase the risk of financial liability for injuries to members
13 of the public who frequent our public buildings. Occupational
14 illness depletes the pool of human resources and increases
15 medical expenditures. For employees and their dependents,
16 occupational accidents and illnesses pose a serious threat to
17 finances, security, and mental and physical well-being.
18 (d) Police power.--The General Assembly, in an exercise of
19 the Commonwealth's police power, charges the Work Environment
20 Board with the responsibility to ensure that all public
21 employees in Pennsylvania are afforded a safe and healthful work
22 environment.
23 (e) Application.--Notwithstanding any other provision in
24 this act, a safety or health standard promulgated under this act
25 shall apply only to employees not covered by a Federal
26 occupational safety or health standard promulgated under section
27 6 of the Occupational Safety and Health Act of 1970, or
28 amendments thereto.
29 Section 3. Definitions.
30 The following words and phrases when used in this act shall
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1 have the meanings given to them in this section unless the
2 context clearly indicates otherwise:
3 "Adverse action." Any action by an employer which adversely
4 affects a worker with respect to any terms or conditions of
5 employment or opportunity for promotion. The term includes, but
6 is not limited to, the action of dismissal, layoff, suspension,
7 demotion, transfer of job or location, reduction in wages,
8 changes in hours or conditions of work, or reprimand.
9 "Authorized employee representative." An employee authorized
10 by the employees to represent them, or the designated
11 representative of an employee organization recognized or
12 certified to represent the employees.
13 "Board." The Work Environment Board.
14 "Committee." A work environment committee.
15 "Employee." A person who engages to furnish his services
16 subject to the direction and control of an employer. The term
17 includes an employee working for an employer who has contracted
18 with a public employer and over whom the National Labor
19 Relations Board has declined jurisdiction, and volunteers such
20 as volunteer fire fighters permitted to serve by an employer.
21 "Employer." The Commonwealth, any political subdivision of
22 this Commonwealth, a public authority or any other governmental
23 agency or instrumentality thereof; any bi-state authority, such
24 as the Delaware River Port Authority; or anyone contracting to
25 perform services for the Commonwealth or any political
26 subdivision or instrumentality thereof.
27 "Harmful agent." An agent that presents a risk to worker
28 health or safety, or imminent danger of death or serious
29 physical harm to an employee. The term includes, but is not
30 limited to, radiation (whether ionizing or nonionizing), stress,
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1 heat, cold, noise, vibration, repetitive motion, hypobaric
2 pressure, hyperbaric pressure, poor illumination, poor ergonomic
3 design, dust, fumes, biological hazards such as molds and
4 allergens, inadequate ventilation, and indoor air pollution.
5 "Hazardous substance." Any chemical or mixture defined as
6 hazardous under section 3 of the act of October 5, 1984
7 (P.L.734, No.159), known as the Worker and Community Right-to-
8 Know Act, and any other substance deemed hazardous by the board.
9 "Imminent danger." A hazard or condition which is likely to
10 cause death, bodily harm, or occupational illness if not abated.
11 "Infectious agent." Infectious agents shall include, but not
12 be limited to, bacteria, viruses, fungi, parasites, rickettsia
13 and protozoa determined by the board to cause substantial acute
14 or chronic illness or permanent disability as a direct or
15 indirect result of exposure to the infectious agent by employees
16 whose places of employment include, but are not limited to,
17 hospitals; morgues; laboratories; clinics; prisons; homes or
18 institutions for the aged and the mentally, physically, or
19 psychologically impaired; schools; day care facilities;
20 shelters; zoos or other animal-handling operations; water and
21 waste treatment plants; and also those public health and social
22 service employees who may be exposed to infectious agents in the
23 course of home or office visits.
24 "Interested person." Any affected person; a representative
25 of any organization of employers or employees; a nationally
26 recognized standards producing organization; a State board,
27 commission or department; a professional organization concerned
28 with occupational safety or health; a representative of a public
29 interest organization; or a member of a department or college or
30 university engaged in research related to occupational safety or
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1 health.
2 "Place of employment." Any location where public employees
3 work, including the vehicles used to travel to and from the
4 field.
5 "Public employee." Any employee of this Commonwealth, a
6 political subdivision of this Commonwealth, a public authority
7 or any other governmental agency or instrumentality thereof.
8 "Recognized hazard." Any hazardous substance, harmful agent,
9 infectious agent, or safety hazard as defined in this act.
10 "Safety hazard." A hazard arising out of or encountered in
11 the course of employment that presents a risk to employee
12 safety. Areas to be monitored for safety hazards shall include,
13 but not be limited to, confined spaces, electrical wiring, fire
14 safety, vehicle safety, job-site preparation, machine guards,
15 walking and working surfaces, traffic control, firefighting
16 equipment and breathing apparatus, and trenching and shoring.
17 "Technically qualified individual." A person who, because of
18 professional or technical education, training, or experience,
19 understands the health and safety risks and the necessary
20 precautions associated with the hazardous substances, harmful
21 agents, infectious agents and safety hazards which the person is
22 hired to address and to which public employees are exposed. The
23 board shall, by rule, adopt a standard which specifies the
24 criteria to be considered in determining whether or not a person
25 is a technically qualified individual.
26 "Work environment inspector." A technically qualified
27 individual hired for the purpose of enforcing all provisions of
28 this act.
29 Section 4. Application of safety and health standards.
30 A safety or health standard promulgated under this act shall
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1 apply to every public employer, and the board shall have
2 exclusive authority to enforce the standard in accordance with
3 this act, notwithstanding any other safety or health standard or
4 any other provision in this act or in any other general, local
5 or special law or charter.
6 Section 5. Employer's duties.
7 Employers shall have the following duties:
8 (1) An employer shall furnish, to each of its employees,
9 employment and a place of employment which are safe and
10 healthful for the employees. Such employment and place of
11 employment shall be free from recognized hazards that cause
12 or may cause death, serious physical harm, or illness to
13 employees.
14 (2) No employer shall occupy or maintain any place of
15 employment that is not safe and healthful.
16 (3) An employer shall implement good housekeeping
17 practices, and maintain good housekeeping conditions in all
18 locations where public employees work.
19 (4) An employer shall ensure that adequate sanitary
20 measures are adopted and that sanitary conditions are
21 maintained in all locations where public employees work.
22 (5) No employer shall require or permit any employee to
23 be in any employment or place of employment which is not safe
24 and healthful.
25 (6) An employer shall adopt and use practices, means,
26 methods, operations and processes which render the employment
27 and place of employment safe and healthful, including the
28 installation of safety devices and safeguards and the
29 provision of personal protective equipment when the devices,
30 safeguards and personal protective equipment are necessary.
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1 Wherever possible, the employer shall institute engineering
2 controls rather than issue personal protective equipment.
3 (7) No employer shall own, lease, construct or cause to
4 be constructed any place of employment that is not safe and
5 healthful.
6 (8) An employer shall comply with the safety and health
7 standards promulgated under this act. These requirements
8 shall be included in all leases of the employer and in all
9 contracts with individuals and contractors who provide
10 services to the employer.
11 (9) An employer shall refrain from any restraint on the
12 right of the work environment inspector to inspect the
13 employer's place of business. An employer shall assist the
14 work environment inspector in the performance of inspection
15 duties by supplying or making available information dealing
16 with exposure reports, general safety and health records, and
17 other records required by this act which are necessary to
18 comply with the purposes and goals of this act.
19 (10) An employer shall provide information to employees,
20 their authorized representatives and committee members in the
21 following ways, as prescribed by authorized regulations:
22 (i) Posting information regarding protections and
23 obligations of employees under occupational safety and
24 health laws at areas in the work place easily accessible
25 to all employees.
26 (ii) Posting prominently each citation issued under
27 this act, or a copy or copies thereof, at or near each
28 place a violation referred to in the notice of violation
29 occurred and at areas in the workplace easily accessible
30 to all employees.
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1 (iii) Providing timely access to all industrial
2 hygiene information and other surveys and reports.
3 Whenever a work environment inspector or any other
4 representative of the employer engages in activities
5 related to the monitoring, measuring, and other means of
6 assessment conducted to assess employee exposure to
7 hazards, the inspector or employer representative shall
8 be accompanied by employee representatives and committee
9 members as provided in section 10(g).
10 (iv) Allowing access by employees and their
11 representatives to accurate records of employee exposures
12 to hazardous substances, infectious agents, harmful
13 agents or safety hazards.
14 (v) Notifying any employee who has been or is being
15 exposed to hazardous materials, harmful agents, or
16 infectious agents, and informing any employee so exposed
17 of corrective action being taken.
18 (vi) Allowing access by employees and their
19 representatives to relevant medical records and posting a
20 summary of relevant medical data in a timely manner.
21 (11) An employer shall consult and work cooperatively
22 with the committees at the place of employment for the
23 purpose of resolving concerns on matters of health, safety
24 and welfare at the worksite. Every employer shall be
25 responsible for providing the committee with any information
26 the employer receives pursuant to section 5 of the act of
27 October 5, 1984 (P.L.734, No.159), known as the Worker and
28 Community Right-to-Know Act, and also for furnishing any
29 information requested by the committee under rights
30 guaranteed in subsection (d) of said section and under any
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1 provision of this act.
2 (12) An employer shall provide, at a minimum, an annual
3 eight-hour education and training program for employees
4 exposed to hazardous substances, harmful agents, infectious
5 agents, and safety hazards, with respect to the hazardous
6 substances, harmful agents, infectious agents, and safety
7 hazards found in their place of employment. Employees shall
8 receive normal wages and benefits from the employer while
9 attending such programs. Additional instruction shall be
10 provided whenever the potential for exposure to hazardous
11 substances, harmful agents, infectious agents, or safety
12 hazards is altered or whenever new information is received by
13 the employer concerning the hazards of the substances,
14 agents, or safety hazards.
15 Section 6. The Work Environment Board.
16 (a) Establishment.--The Work Environment Board is hereby
17 established as an independent administrative board.
18 (b) Purpose.--The purpose of the board shall include, but
19 not be limited to, the following:
20 (1) Establish, maintain and enforce standards for the
21 protection of the health and safety of public employees in
22 the Commonwealth of Pennsylvania.
23 (2) Administer and enforce this act and all regulations
24 related thereto.
25 (3) Either alone or in conjunction with the Workmen's
26 Compensation Appeal Board of the Department of Labor and
27 Industry, or the Department of Health, prepare and maintain
28 morbidity and accident statistics relating to public
29 employees.
30 (4) Provide assistance to persons concerned with
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1 occupational health and safety and provide services to assist
2 committees, employers, and public employees in maintaining
3 standards for the protection of the health and safety of
4 public employees.
5 (5) Promote or conduct studies and research projects in
6 connection with problems relating to the health and safety of
7 public employees.
8 (6) Conduct educational programs, including seminars and
9 courses of training for promoting the health and safety of
10 public employees and for improving the qualifications of
11 persons involved in the promotion of occupational health and
12 safety.
13 (7) Appoint advisory committees to assist in the
14 administration of this act.
15 (8) Make grants for any of the purposes mentioned in
16 this section.
17 (c) Membership.--The board shall consist of 15 members. The
18 following officials shall each appoint three members to the
19 board:
20 (1) The President pro tempore of the Senate.
21 (2) The Minority Leader of the Senate.
22 (3) The Speaker of the House of Representatives.
23 (4) The Minority Leader of the House of Representatives.
24 (5) The Governor.
25 At least two of the three members appointed by each official
26 shall be nonmanagement public employees. One of each official's
27 initial appointees shall serve for a term of three years, one
28 for four years and one for five years. Thereafter, terms of
29 office shall be for five years. The board shall elect a chairman
30 from among its members for a term of five years.
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1 (d) Duties.--The board shall promulgate a plan for the
2 development and enforcement of occupational safety and health
3 standards with respect to public employers and employees. The
4 board shall also have the following powers and duties:
5 (1) The board shall review the safety and health
6 standards promulgated under the Occupational Safety and
7 Health Act of 1970 (Public Law 91-596, 29 U.S.C. § 651 et
8 seq.), which are in effect on the effective date of this act,
9 and shall adopt, by rule, those standards which the board
10 deems to provide maximum protection to the lives, safety and
11 health of public employees. In addition, the board may, at
12 its discretion, adopt at its own, any standards and
13 regulations currently in existence in Pennsylvania State law.
14 (2) The board shall have the authority to adopt
15 standards and promulgate regulations for any and all
16 hazardous substances, harmful agents, infectious agents and
17 safety hazards regardless of whether standards and
18 regulations have been enacted or proposed by OSHA or other
19 Federal governmental agencies, or State or local health
20 codes.
21 (3) The board shall adopt regulations governing all
22 other potential health and safety hazards or conditions,
23 including, but not limited to, asbestos, new technology,
24 staffing levels, heat, cold, noise, ventilation, indoor air
25 pollution, sanitation and housekeeping.
26 (4) No standards shall be adopted for products
27 distributed or used in interstate commerce which are
28 different from Federal standards for such products unless
29 such standards are required by compelling local conditions
30 and do not unduly burden interstate commerce.
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1 (5) In the event of an emergency or unusual situation,
2 the board shall provide for an emergency temporary standard
3 to take immediate effect upon publication in newspapers of
4 general circulation in Philadelphia, Pittsburgh, Harrisburg
5 and Erie if the administrator deems that:
6 (i) employees are exposed to grave danger from
7 exposure to substances or agents determined to be toxic
8 or physically harmful or from new hazards; and
9 (ii) such emergency standards are necessary to
10 protect employees from such danger.
11 Such emergency standards shall be in effect no longer than
12 120 days, or, if renewed in compliance with this section, not
13 longer than 60 additional days. On or before the expiration
14 date of the emergency standards or renewal thereof, the
15 administrator shall develop a permanent standard to replace
16 the emergency standard.
17 (6) The board shall promulgate such rules and
18 regulations as may be deemed necessary to carry out the
19 purposes and responsibilities of the board and to enforce the
20 provisions of this act.
21 (7) The board shall engage in inspections and
22 investigations to ensure compliance by public employers with
23 the provisions of this act and rules, regulations and
24 standards established by the board. The board shall also use
25 all statutory authority granted to it in this act to ensure
26 full compliance by public employers with the provisions of
27 this act and rules, regulations and standards established by
28 the board.
29 (8) The board may employ assistants, experts,
30 inspectors, hearing officers, consultants, technically
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1 qualified individuals, and other employees. All such
2 personnel of the board shall be under the supervision of the
3 chairman of the board or an executive officer to whom the
4 board delegates such responsibility.
5 (9) In accordance with the powers and duties described
6 and established in this act and effective immediately, as a
7 first order of business, the board shall promulgate and
8 establish an asbestos abatement program which shall include,
9 but not be limited to, the following provisions:
10 (i) The board shall, within one year of the
11 effective date of this act, promulgate regulations
12 relating to and requiring the removal of asbestos from
13 all worksites. In drafting these regulations, the board
14 shall consider the asbestos regulations established in
15 the asbestos safety program of the State of Maryland
16 which was promulgated by executive order. Regulations
17 adopted by the board shall be at least as comprehensive
18 as the Maryland program.
19 (ii) All public employers shall, within one year
20 after the effective date of this act:
21 (A) Conduct building inspections to determine
22 the presence of asbestos in all facilities. Such
23 inspections shall be conducted by technically
24 qualified individuals.
25 (B) Maintain records of the findings.
26 (C) Notify the employees, employee
27 representatives and committees of the results of
28 inspections and release to said individuals and
29 groups the records from the inspections. Members of
30 the public shall have access to the records of
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1 inspections of public buildings.
2 (iii) Where asbestos exists in a facility, the
3 employer shall file an asbestos abatement plan with the
4 board. This plan shall conform to all practices
5 recommended by the Environmental Protection Agency for
6 abatement of asbestos. Abatement plans shall be subject
7 to approval of the committees at the affected locations.
8 Within 30 days of receipt of the plan, the board shall
9 review the plan and assign a date on which abatement is
10 to commence, not to exceed six months.
11 (10) The board shall promulgate regulations that, within
12 two years, eliminate the use of all asbestos brakes and
13 clutch facings in all vehicles owned, leased, or otherwise
14 used by this Commonwealth and its political subdivisions.
15 (11) The board shall promulgate regulations providing
16 timely access to all industrial hygiene and other surveys and
17 reports. Employers shall provide the opportunity for
18 employees and their representatives to walk around with work
19 environment inspectors and all representatives of the
20 employer engaged in activities related to the monitoring,
21 measuring, and other means of assessment, to observe
22 monitoring, measuring, and other means of assessment
23 conducted to assess employee exposure to hazards pursuant to
24 standards promulgated under this act.
25 (12) The board shall provide for the preparation of
26 regulations or standards requiring proper work procedures,
27 employee training and provision of any necessary vaccinations
28 or inoculations at employer expense for any employee
29 regularly exposed to infectious diseases in the course of his
30 or her employment.
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1 (13) The board shall provide for the preparation of
2 regulations and standards requiring adequate staffing levels
3 which provide sufficient backup support, protection and
4 assistance and requiring training in defensive actions at
5 institutions where, during the course of regular employment,
6 any employee required to transport, monitor or supervise
7 potentially violent residents may be subject to physical
8 abuse or attack likely to cause death or serious physical
9 harm.
10 (14) The board shall provide for the preparation and
11 adoption of regulations and standards requiring adequate
12 ventilation in all buildings where public employees are
13 employed. The standards shall insure that the indoor air
14 quality of all workspaces shall remain free of levels of air
15 contaminants likely to be dangerous, unhealthy or
16 uncomfortable.
17 (15) The board shall promulgate regulations and
18 standards requiring adequate staffing levels for all public
19 employers that ensure the public safety and provide critical
20 social services, including, but not limited to, police,
21 firefighters, social service workers, and hospital workers.
22 (16) The board shall promulgate regulations and
23 standards requiring adequate sanitary measures and
24 maintenance of good housekeeping in all places of employment
25 where public employees work.
26 (17) The board shall assess the public employee health
27 and safety programs and report on the operation and
28 effectiveness of this act:
29 (i) The board shall examine the incidence of work-
30 related injuries, the incidence of injuries or
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1 occupational illness to the public, and the effect of
2 this act upon insurance costs of public employers. It
3 shall be empowered to recommend additional or corrective
4 legislation to advance the purposes of this act.
5 (ii) The board shall issue an interim report to the
6 General Assembly and the Governor one year after the
7 effective date of this act. A final report shall be
8 issued two years after the effective date of this act.
9 Section 7. Grants for hazard abatement.
10 (a) General.--The board shall receive, review and act upon
11 applications for funding of capital projects designed to abate
12 occupational health and safety hazards. The board shall have the
13 authority to fund 75% of the cost of any capital abatement
14 project necessary to comply with an order issued by the board
15 under this act.
16 (b) Discretion.--The board may require, as part of an
17 application, such information as it deems necessary and shall
18 act upon the application within a reasonable time. The board
19 shall furnish the Budget Secretary, Secretary of Labor and
20 Industry, Auditor General, President pro tempore of the Senate
21 and the Speaker of the House of Representatives with a copy of
22 each application within three days following receipt thereof by
23 the board.
24 (c) Factors determining recipients of grants.--In
25 determining which applicants shall receive grants from the fund
26 and the amount of funding, the board shall consider the
27 following factors:
28 (1) The degree of possible physical harm which the
29 hazard to be abated could inflict on the public employees and
30 other citizens at risk.
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1 (2) The imminent nature of the possible infliction of
2 harm.
3 (3) The number of public employees and other citizens at
4 risk.
5 (4) The ability of the applying public employer to fund
6 the capital abatement project out of its own funds.
7 (5) The total amount of debt for capital construction
8 projects for which the applying public employer is
9 responsible and the ability of the applying public employer
10 to meet its annual debt service.
11 (d) Duty to abate violation.--The fact that a public
12 employer has applied for funds pursuant to this act shall not
13 relieve that employer of the obligation to abate a violation of
14 this act.
15 Section 8. Work environment inspectors.
16 (a) Appointment.--The board shall appoint work environment
17 inspectors to ensure that the provisions of this act are
18 adequately enforced.
19 (b) Duties.--Duties of inspectors shall include, but not be
20 limited to, the following:
21 (1) At any time of the day or night, with or without
22 prior notification, to enter and inspect any premises or
23 place of employment and take any samples and photographs and
24 make any examinations the inspector considers necessary to
25 accomplish the purposes and goals of this act.
26 (2) To require the employer to produce for inspection by
27 the work environment inspector, books, records, documents, or
28 any other material maintained by the employer, to assist the
29 inspector in making determinations and in enforcing this act.
30 (3) To perform all other duties as authorized by the
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1 board.
2 (c) Coverage.--Work environment inspectors shall be entitled
3 to benefits under the act of June 28, 1935 (P.L.477, No.193),
4 referred to as the Enforcement Officer Disability Benefits Law.
5 (d) Cooperation.--Work environment inspectors shall
6 cooperate with the work environment committees.
7 Section 9. Work environment committees.
8 (a) Purpose and establishment.--To best assure that the
9 health and safety of the public employees of this Commonwealth
10 is protected, work environment committees, consisting of
11 representatives of employees and employers, shall be established
12 at each place of employment covered by this act. Nothing in this
13 section shall diminish the employer's responsibility to assure a
14 safe and healthful work environment.
15 (b) Employee members.--There shall be one employee member of
16 a work environment committee for every 25 employees. For any
17 place of employment where there are less than 25 employees,
18 there shall be one employee member from the three largest
19 bargaining units. Employee members of work environment
20 committees shall be appointed by the employee organizations
21 recognized or certified as the employee representatives
22 (bargaining agents) for the employees at the place of
23 employment. In the absence of a recognized or certified employee
24 representative, the employees shall elect their representatives.
25 In the event that there is more than one bargaining agent,
26 employee members shall be selected from the three largest
27 bargaining agents in accordance with regulations promulgated by
28 the board.
29 (c) Employer members.--The employer shall be entitled to
30 appoint a similar number of members to the work environment
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1 committee, but not more than one less than the number of
2 employee members.
3 (d) Powers and duties.--Work environment committees shall:
4 (1) Regularly inspect the workplace for the existence of
5 hazardous conditions, and check for compliance with standards
6 and regulations promulgated under this act and compliance
7 with the general intent of this act.
8 (2) Review health and safety records to monitor
9 incidents of accidents and illnesses and identify problem
10 areas.
11 (3) Develop safety procedures.
12 (4) Set up employer-funded medical testing for potential
13 work-related illnesses or disabilities which may arise out of
14 or in the course of employment, including illnesses or
15 disabilities resulting from or contributed to by exposure to
16 hazardous substances, harmful agents, infectious agents or
17 safety hazards. The board shall promulgate such regulations
18 as may be necessary to protect the confidentiality of
19 employees.
20 (5) Investigate imminent danger situations, accidents
21 and unusual environmental conditions to which the employees
22 they represent are exposed.
23 (6) When it determines that an imminent danger exists,
24 order the dangerous activity to cease. In the event the
25 committee is unavailable, the chairman of the committee may
26 make such a decision until such time as the committee can
27 meet to consider the matter. The activity may not resume
28 until the work environment inspector deems it safe.
29 (7) Do anything else deemed necessary to promote health
30 and safety at the place of employment.
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1 (e) Meetings.--Committees shall hold regular meetings at
2 least once each month. The meetings of a committee shall be held
3 during ordinary working hours unless otherwise agreed upon by
4 the employee members of the committee. Additional meetings shall
5 be held to deal with business that cannot be delayed to the next
6 meeting, when so requested in writing.
7 (f) Training.--Every committee member shall be entitled to
8 not less than 40 hours of occupational health and safety
9 training annually. Training shall be provided at employer
10 expense at an institution acceptable to employee members of the
11 committee. Participating employees shall receive their regular
12 rate of pay and benefits while attending such training.
13 (g) Rights of committee members.--
14 (1) Each committee member shall be entitled to a minimum
15 of 16 hours per month to research and investigate actual and
16 potential workplace hazards. There shall be no loss in pay,
17 benefits or accrual of seniority for time spent on committee
18 business.
19 (2) The committee shall receive from the employer, at
20 least 90 days in advance of implementation, notice concerning
21 the following changes in working conditions: a change in
22 workplace technology or process; an introduction into the
23 workplace of any substance or material suspected of being a
24 hazardous substance, harmful agent, infectious agent or
25 safety hazard, as defined in this act, or a change in
26 workplace design. The committee may determine the impact of
27 any such change on the health and safety of the employees. If
28 the implementation of the changes remains in dispute, the
29 matter shall be submitted to the board for resolution.
30 (3) The committee shall receive from the employer, at
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1 least 90 days in advance, notice concerning any proposed
2 layoff or reduction in workforce, so that the committee may
3 conduct a study to analyze the impacts of the proposed
4 reduction on the workplace and public health and safety.
5 (h) Nonliability.--The bargaining representatives and work
6 environment committees, and individual members of such
7 committees, shall not be held liable for any work-connected
8 injuries, disabilities or diseases which may be incurred by
9 employees.
10 Section 10. Inspections.
11 (a) Request for inspection.--Any employee, representative of
12 employees, committee member, interested person or member of the
13 public who believes that a violation of a safety or health
14 standard exists, or that an imminent danger exists, may request
15 an inspection by giving notice to the board of the violation or
16 danger.
17 (b) Manner of request.--Requests for inspections may be made
18 orally or in writing and shall set forth the grounds for the
19 request. The board shall, upon request of the complaining party,
20 keep confidential the name of the person making the complaint.
21 (c) Action on request.--Whenever the board receives a
22 request for inspection of an imminent danger or where the board
23 is aware of the likelihood of an imminent danger, an inspection
24 shall be made immediately. In all other cases, inspections shall
25 be made as soon as possible but at least within five days. The
26 board shall provide a copy of the inspection report and any
27 order or agreements made to the individual making the complaint,
28 to the employee's representative and to the committee and the
29 employer.
30 (d) Inspection without notice.--Inspections may be made
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1 unannounced and without any notice to the employer or the
2 employees.
3 (e) Accessibility of locations.--Inspectors of the board
4 shall have immediate access to any location in which there is a
5 suspected hazard or condition for the purposes of conducting an
6 inspection.
7 (f) Intermittent inspections.--The board shall determine
8 those occupations and workplaces where there is a possibility of
9 health or safety hazards to employees or the public and shall
10 conduct regular unannounced inspections of these workplaces.
11 (g) Escort of inspector.--A representative of the employer
12 and an authorized employee representative shall accompany the
13 inspector for the entire inspection whenever the inspector
14 conducts an inspection in accordance with this act. In addition,
15 the work environment committee may designate one or more
16 committee members to accompany the inspector, the representative
17 of the employer, and the authorized employee representative on
18 any or all parts of the inspection which address, but are not
19 limited to, work areas and processes of which the committee
20 member or committee members have firsthand knowledge. The
21 authorized employee representatives and designated committee
22 members shall attend all opening, interim and closing
23 conferences pertaining to the inspection. Authorized employee
24 representatives and committee members shall receive full
25 employment benefits for all time spent on such activities.
26 (h) Inspection regardless of complaint.--The authority of
27 the board to inspect a premises pursuant to an employee
28 complaint shall not be limited to the alleged violation
29 contained in the complaint. The board may inspect any other
30 areas of the premises.
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1 (i) Inspection of public employer's premises.--The board
2 may, upon its own initiative, conduct an inspection of any
3 premises occupied by a public employer.
4 (j) Request for immediate inspection.--Any employee,
5 representative of employees, or committee member who believes
6 imminent danger exists may request an immediate inspection by
7 the committee.
8 Section 11. Recordkeeping.
9 (a) Records required.--In accordance with the board's
10 regulations, each employer shall make, keep and preserve, and
11 make available to the board, the records regarding his
12 activities relating to this act as the board deems necessary or
13 appropriate for developing information regarding the causes and
14 prevention of occupational accidents and illness. The
15 regulations may include provisions requiring employers to
16 conduct periodic inspections. The board shall also issue
17 regulations requiring that employers, through posting of
18 notices, training or other appropriate means, keep their
19 employees informed of their rights to protection.
20 (b) Regulations concerning reports.--The board shall
21 prescribe regulations requiring employers to maintain accurate
22 records and to make public, monthly reports and biannual
23 summaries of work-related deaths and injuries and illnesses,
24 medical treatment, loss of consciousness, assaults on employees,
25 restrictions of work or motion, or transfers to other jobs.
26 (c) Examination of reports.--Employers, the authorized
27 representative of the employees, and the committee shall, upon
28 request, have the right to examine and copy any and all such
29 reports.
30 (d) Regulations concerning records.--The board shall issue
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1 regulations requiring employers to maintain accurate records of
2 employee exposures to potentially hazardous substances, harmful
3 agents, infectious agents, or safety hazards. The regulations
4 shall make appropriate provisions for each employee or former
5 employee to have access to his exposure records. Each employer
6 shall immediately notify any employee who has been or is being
7 exposed to hazardous substances, harmful physical agents, or
8 infectious agents. Employees exposed to such hazards shall be
9 informed by the employer of the corrective action proposed and
10 the time limit for implementation, and shall immediately be
11 scheduled for participation in the medical surveillance program.
12 Section 12. Adverse action against employees.
13 (a) Prohibition.--No adverse action shall be taken against
14 any employee by reason of the employee's participation in or
15 association with any functions of a committee; by reason of the
16 employee's inquiry about or utilization of any rights or
17 responsibilities he may have under this act; or for any other
18 reasons having to do with exercising any rights granted under
19 provisions of this act.
20 (b) Presumption.--Where an adverse action is taken against
21 any employee who has in any way been involved with the
22 enforcement or protection of any rights granted under this act,
23 it shall be presumed that the action was taken in violation of
24 this act and it shall be the burden of the employer to prove
25 that the action was not taken for improper reasons described in
26 subsection (a) or for reasons otherwise contrary to the policies
27 and provisions of this act.
28 Section 13. Right to refuse unsafe work.
29 (a) Right to refuse.--An employee may refuse to do any
30 particular act or series of acts at work which the employee has
19850H1166B1372 - 25 -
1 reason to believe is dangerous to his health or safety or the
2 health and safety of any other person until the committee and
3 the work environment inspector have investigated the matter and
4 advised him in writing that a hazard no longer exists.
5 (b) Adverse action barred.--No adverse action shall be taken
6 against any employee by reason of the fact that the employee has
7 exercised the right conferred upon him by subsection (a).
8 (c) Presumption.--Where adverse action is taken against an
9 employee who has exercised the right conferred upon him by
10 subsection (a), there shall be the presumption in favor of the
11 employee that the action was taken against him for that reason
12 and it shall be the burden of the employer to prove that the
13 action was not taken for improper reasons.
14 (d) Temporary assignments.--Notwithstanding any other
15 provision of this act, temporary assignment to alternative work
16 shall be at no loss of pay, benefits or contractual or
17 noncontractual rights to the employee until the matter mentioned
18 in subsection (a) is resolved, and shall be deemed not to
19 constitute adverse action within the meaning of this act.
20 Section 14. Rights of affected employees.
21 An employee who believes that adverse action has been taken
22 against him in violation of section 12 or 13 may, within 180
23 days after he becomes aware of such action, file a complaint
24 with the board alleging the adverse action. Upon receipt of the
25 complaint, the board shall make an investigation and shall, if
26 requested, withhold the name of the complainant from the
27 employer. Whenever the board determines that this act has been
28 violated, it shall request the Attorney General to bring an
29 action in Commonwealth Court against the employer alleged to
30 have violated this act. In the event of a finding of adverse
19850H1166B1372 - 26 -
1 action, the employer shall:
2 (1) Cease the adverse action and reinstate the employee
3 to his former employment without loss of pay, contractual and
4 noncontractual rights, or benefits.
5 (2) Pay to the worker any wages and benefits the worker
6 would have earned had he not had adverse action taken against
7 him.
8 (3) Remove any reprimand or other reference to the
9 matter from the employer's records on the employee.
10 Section 15. Enforcement.
11 (a) Order of the board.--Whenever the board or a work
12 environment inspector determines that an employer has violated
13 this act, or a health or safety standard or regulation
14 promulgated under this act, the board shall, within five days,
15 issue to the employer an order to comply, which shall describe
16 particularly the nature of the violation, including a reference
17 to the provision of this act, standard, regulation or order
18 alleged to have been violated, and any corrective action
19 required. The board shall fix a reasonable time for compliance,
20 not to exceed 24 hours, unless the employer can demonstrate to
21 the board that the violation cannot be remedied within that
22 time.
23 (b) Imminent danger.--Whenever and wherever a work
24 environment inspector concludes that an activity being carried
25 on or scheduled to commence involves or will involve a risk of
26 serious personal injury or harm and that the risk of such injury
27 or harm is imminent, the inspector shall require that the work
28 cease. The inspector may stop work-related and nonwork-related
29 activities in the vicinity of the imminent danger if such action
30 is needed to protect the health and safety of other persons. If,
19850H1166B1372 - 27 -
1 upon inspection, the work environment inspector finds an
2 imminent danger to exist, the inspector shall order the
3 immediate abatement of the dangerous situation. Before the
4 employer may recommence the activity, the inspector must certify
5 that the employer has come into compliance with this act.
6 (c) Posting of order.--Whenever the board issues to an
7 employer an order to comply, the employer shall post the order
8 or a copy of the order in a conspicuous place, at or near each
9 place of violation cited in the order, where it is clearly
10 visible to the affected employees. The board shall furnish
11 copies of such orders to employee representatives and the
12 committee.
13 (d) Appeals.--Any party affected by a determination of the
14 board issued under this act may petition the Pennsylvania Labor
15 Relations Board for review of the determination. Judicial review
16 by the Pennsylvania Labor Relations Board may be obtained by any
17 party affected by the decision in the manner provided in Title 2
18 of the Pennsylvania Consolidated Statutes (relating to
19 administrative law and procedure). The order shall remain in
20 full force and effect during pendency of an appeal.
21 (e) Proceedings by the board.--Whenever the time for
22 compliance with an order of the board has elapsed and the
23 employer has not complied with the order, the board shall
24 immediately seek judicial enforcement, by injunction and other
25 appropriate remedies, of such order, by commencing a proceeding
26 in Commonwealth Court, which shall have jurisdiction to enforce
27 a lawful order of the board.
28 (f) Injunctive relief.--The Commonwealth Court shall, upon
29 petition of the board or any affected party, restrain any
30 conditions or practices in any place of public employment which
19850H1166B1372 - 28 -
1 could be expected to cause death or physical harm. An order
2 issued under this section may require such steps to be taken as
3 may be necessary to avoid, correct or remove an imminent danger
4 and prohibit the employment or presence of an individual in
5 locations or under conditions where an imminent danger exists,
6 except individuals whose presence is necessary to avoid, correct
7 or remove the imminent danger or to maintain the capacity of a
8 continuous process operation to resume normal operations without
9 a complete cessation of operations, or, where a cessation of
10 operations is necessary, to permit it to be accomplished in a
11 safe and orderly manner.
12 (g) Failure of the board to act.--Whenever the board fails
13 to seek relief under this section within 48 hours of being
14 notified of such condition, any employee who may be injured by
15 reason of the failure, or the authorized employee representative
16 of such employee or the committee, may seek injunctive relief,
17 as provided in this section or any other appropriate remedies.
18 In the event that such an action is successful, the employer
19 shall pay the costs and legal fees of the petitioning parties.
20 (h) Follow-up inspection.--If at the time of or after
21 inspection or investigation, the inspector or board issues an
22 order for a violation, the board shall conduct a reinspection at
23 the end of the period fixed for abatement of the violation. No
24 employer shall be given advance warning of a reinspection by any
25 authorized representative of the board. Any authorized
26 representative of the board who gives advance notice of any
27 inspection to be conducted commits a misdemeanor and shall, upon
28 conviction, be punished by a fine of not more than $1,000 or by
29 imprisonment for not more than six months, or both.
30 (i) Pay of employees.--Whenever the employer, by requirement
19850H1166B1372 - 29 -
1 of a court order or an order of the board, or voluntarily
2 because of a health or safety hazard, ceases work, resulting in
3 employees being denied the opportunity to work, the employer
4 shall pay the employees their regular pay and regular benefits,
5 during the period they are prevented from working, for work that
6 would have been performed if the employer had been operational.
7 Section 16. Variances.
8 (a) Application for exception.--An employer may apply to the
9 board for a temporary order granting an exception from a
10 standard promulgated under this act. The temporary order may be
11 granted only if the employer files an application which meets
12 the requirements of this section and establishes that the
13 employer:
14 (1) Is unable to comply with a standard by its effective
15 date because of the unavailability of professional or
16 technical personnel or of materials and equipment needed to
17 come into compliance with the standard or because necessary
18 construction or alteration of facilities cannot be completed
19 by the effective date.
20 (2) Is taking all available steps to safeguard employees
21 against the hazards covered by the standard.
22 (3) Has an effective program for coming into compliance
23 with the standard as quickly as possible.
24 (b) Temporary orders.--A temporary order issued under this
25 section shall prescribe the practices, means, methods,
26 operations and processes which the employer must adopt and use
27 while the order is in effect and state in detail compliance
28 requirements. The temporary order may be granted only after
29 notice to employees, employee representatives, and the
30 committee, and after an opportunity for a hearing. The board
19850H1166B1372 - 30 -
1 may, however, issue one interim order to be effective until a
2 decision is made on the basis of the hearing. A temporary order
3 shall not be in effect for longer than the period needed by the
4 employer to achieve compliance with the standard, or one year,
5 whichever is shorter. An order may be renewed not more than
6 twice, if the requirements of this section are met and if an
7 application for renewal is filed at least 90 days prior to the
8 expiration date of the order. An interim renewal of an order
9 shall remain in effect no longer than 180 days.
10 (c) Contents of application for temporary order.--An
11 application for a temporary order shall contain:
12 (1) A specification of the standard or portion thereof
13 from which the employer or owner seeks a variance.
14 (2) A representation by the employer, supported by
15 representations from qualified persons who have first-hand
16 knowledge of the facts represented, that the employer is
17 unable to comply with the standard or portion thereof and a
18 detailed statement of the reasons therefor.
19 (3) A statement of the steps the employer has taken and
20 will take, with dates specified, to protect employees against
21 the hazard covered by the standard.
22 (4) A statement of when the employer expects to be able
23 to comply with the standard and what steps the employer has
24 taken and will take, with dates specified, to come into
25 compliance with the standard.
26 (5) A certification that the employer has informed his
27 employees of the application by giving a copy of the
28 application to their authorized representative and committee;
29 by posting a statement giving a summary of the application
30 and specifying where a copy may be examined at the place or
19850H1166B1372 - 31 -
1 places where notices to employees are normally posted; and by
2 other appropriate means. A description of how employees have
3 been informed shall be contained in the certification. The
4 information to employees shall also inform them of their
5 right to petition the board for a hearing.
6 (d) Rights of affected employer or employee.--Affected
7 employees shall be given notice of each application for a
8 variance and an opportunity to participate in a hearing. The
9 board shall issue an order if it determines, on the record,
10 after opportunity for an inspection, where appropriate, and a
11 hearing, that the proponent of the variance has demonstrated by
12 a preponderance of the evidence that the conditions, practices,
13 means, methods, operations or processes used or proposed to be
14 used by an employer will provide employment and places of
15 employment which are as safe and healthful as those which would
16 prevail if he complied with the standard. The order shall
17 prescribe the conditions the employer must maintain and the
18 practices, means, methods, operations and processes which he
19 must adopt and utilize to the extent they differ from the
20 standard in question. An order may be modified or revoked upon
21 application by an employer, any employee or employee
22 representative, or by the board on its own motion, in the manner
23 prescribed for its issuance under this section, at any time
24 after six months from its issuance.
25 (e) Time limit for challenge.--A person who may be adversely
26 affected by an order issued under this act may challenge the
27 validity or applicability of the order within 120 days from the
28 date of issuance as provided in section 15(d).
29 Section 17. Civil penalties.
30 An employer who violates any rule, regulation or lawful order
19850H1166B1372 - 32 -
1 of the board shall be subject to a civil penalty. The board
2 shall promulgate regulations covering the assessment of civil
3 penalties under this act which give due consideration to the
4 appropriateness of the penalty with respect to the following
5 factors:
6 (1) The size of the employer being charged.
7 (2) The gravity of the violation.
8 (3) The good faith of the employer.
9 (4) The history of previous violations.
10 Section 18. Criminal penalties.
11 Any employer who does not comply with any rule, regulation or
12 lawful order of the board commits a misdemeanor of the third
13 degree and shall, upon conviction, be sentenced as follows:
14 (1) To pay a fine of not more than $5,000 or to
15 imprisonment for not more than one year, or both, for a first
16 offense.
17 (2) To pay a fine of not less than $3,000 nor more than
18 $10,000 or to imprisonment for not more than two years, or
19 both, for a second offense.
20 (3) To pay a fine of not less than $5,000 or to
21 imprisonment for not more than five years, or both, for a
22 subsequent offense.
23 Section 19. Employee's right to initiate legal action.
24 The statute of limitations affecting the right of any person
25 to file a claim for personal injury, or any other legal action
26 arising from exposure to toxic substances, shall be calculated
27 from the time when an individual becomes aware of the injury,
28 illness or disability arising from work-related exposure to such
29 substances.
30 Section 20. Appropriation.
19850H1166B1372 - 33 -
1 The sum of $3,000,000 is hereby appropriated to the Work
2 Environment Board to carry out the purposes of this act.
3 Section 21. Effective date.
4 This act shall take effect in 60 days.
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