PRINTER'S NO. 694
No. 630 Session of 1993
INTRODUCED BY GLADECK, CESSAR, LEH, MARSICO, HECKLER,
E. Z. TAYLOR, LINTON, TRELLO, S. H. SMITH, DEMPSEY, FARGO,
FICHTER, SAURMAN, CORNELL, FLICK, GEIST AND HENNESSEY,
MARCH 22, 1993
REFERRED TO COMMITTEE ON LABOR RELATIONS, MARCH 22, 1993
AN ACT
1 Relating to the protection of the occupational health and safety
2 of public employees; creating the Public Employee
3 Occupational Safety and Health Review Board and providing for
4 its powers and duties; conferring powers and duties on the
5 Department of Labor and Industry; providing penalties; and
6 making an appropriation.
7 TABLE OF CONTENTS
8 Section 1. Short title.
9 Section 2. Definitions.
10 Section 3. Scope.
11 Section 4. Duties of employer and employee.
12 Section 5. Regulations.
13 Section 6. Adoption of Federal and State standards; variances.
14 Section 7. Inspections and investigations; records.
15 Section 8. Citation for violation.
16 Section 9. Board.
17 Section 10. Notice to employer of contest period and proposed
18 assessment; action by board.
19 Section 11. Appeal from board.
1 Section 12. Discrimination against employee filing complaint.
2 Section 13. Injunction and mandamus.
3 Section 14. Civil and criminal penalties.
4 Section 15. Research and demonstration projects.
5 Section 16. Education program.
6 Section 17. Reports to United States Secretary of Labor.
7 Section 18. Appropriation.
8 Section 19. Severability.
9 Section 20. Effective date.
10 The General Assembly of the Commonwealth of Pennsylvania
11 hereby enacts as follows:
12 Section 1. Short title.
13 This act shall be known and may be cited as the Public
14 Employee Occupational Safety and Health Act.
15 Section 2. Definitions.
16 The following words and phrases when used in this act shall
17 have the meanings given to them in this section unless the
18 context clearly indicates otherwise:
19 "Board." The Public Employee Occupational Safety and Health
20 Review Board established under this act.
21 "Department." The Department of Labor and Industry of the
22 Commonwealth.
23 "Employee." An individual engaged in service to an employer
24 for wages or other remuneration.
25 "Employer." The Commonwealth; a political subdivision; and a
26 board, commission, agency or instrumentality of either.
27 "Occupational safety and health standard." A standard which
28 requires conditions or the adoption or use of practices, means,
29 methods, operations or processes reasonably necessary or
30 appropriate to provide safe or healthful employment in places of
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1 employment.
2 "Secretary." The Secretary of Labor and Industry of the
3 Commonwealth.
4 Section 3. Scope.
5 (a) Application.--This act applies to all employers,
6 employees and places of public employment in this Commonwealth
7 except the following:
8 (1) Employees of the United States Government.
9 (2) Working conditions of employees over which Federal
10 agencies other than the United States Department of Labor
11 exercise statutory authority to prescribe or enforce
12 standards or regulations affecting occupational safety and
13 health.
14 (b) Worker's compensation.--Nothing in this act shall be
15 construed to supersede or affect any worker's compensation
16 statute or to enlarge, diminish or affect common law or
17 statutory rights, duties or liabilities of employers or
18 employees with respect to injuries, diseases or death of
19 employees arising out of and in the course of employment.
20 Section 4. Duties of employer and employee.
21 (a) General rule.--An employer shall furnish to its
22 employees employment and a place of employment which are free
23 from recognized hazards that are causing or are likely to cause
24 death or serious physical harm to employees.
25 (b) Standards.--An employer shall comply with occupational
26 safety and health standards promulgated under this act.
27 (c) Regulations and orders.--Employers and employees shall
28 comply with occupational safety and health regulations and
29 orders which are issued under this act and which are applicable
30 to their own actions and conduct.
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1 Section 5. Regulations.
2 In adoption of regulations under the authority of this act,
3 the secretary shall:
4 (1) Provide for the preparation, adoption, amendment or
5 repeal of regulations governing the conditions of employment
6 of general and special application in all public workplaces.
7 (2) Provide a method of encouraging employers and
8 employees in their efforts to reduce the number of safety and
9 health hazards arising from undesirable, inappropriate or
10 unnecessary working conditions at the workplace and of
11 stimulating employers and employees to institute new, and to
12 perfect existing, programs for providing safe and healthful
13 working conditions.
14 (3) Provide for appropriate reporting procedures by
15 employers with respect to information relating to conditions
16 of employment as will assist in achieving the objectives of
17 this act.
18 (4) Provide for the frequency, method and manner of
19 making inspections of workplaces without advance notice.
20 (5) Provide for the publication and dissemination to
21 employers, employees and labor organizations, and the
22 posting, where appropriate, by employers, of informational,
23 educational or training materials calculated to aid and
24 assist in achieving the objectives of this act.
25 (6) Provide for the establishment of new, and the
26 perfection and expansion of existing, programs for
27 occupational safety and health education for employers and
28 employees and institute methods and procedures for the
29 establishment of a program for voluntary compliance by
30 employers and employees with the requirements of this act and
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1 applicable safety and health standards and regulations
2 promulgated under this act.
3 Section 6. Adoption of Federal and State standards; variances.
4 (a) General rule.--The secretary shall adopt, through
5 incorporation by reference under 1 Pa. Code § 3.41(a) (relating
6 to matter not required to be published), all occupational health
7 and safety standards, together with amendments or changes
8 adopted or recognized by the United States Secretary of Labor
9 under the authority of the Occupational Safety and Health Act of
10 1970 (Public Law 91-596, 84 Stat. 1590). Where no Federal
11 standards are applicable, the secretary shall provide for the
12 development of State standards necessary in special
13 circumstances because of the particular circumstances of the
14 type of public work involved, provided that no State standard
15 shall be promulgated with regard to matters of inherent
16 managerial policy, which shall include, but not be limited to,
17 such areas of discretion or policy as the functions and programs
18 of the public employer, standards of services, its overall
19 budget, utilization of technology, the organizational structure
20 and the selection and direction of personnel. The secretary, in
21 promulgating additional standards, shall set a standard which
22 most adequately assures, to the extent feasible, on the basis of
23 the best available evidence, that no public employee will suffer
24 material impairment of health or functional capacity even if the
25 employee has regular exposure to the hazard dealt with by the
26 standard for the period of the employee's working life.
27 Development of standards under this subsection shall be based
28 upon research, demonstrations, experiments and other information
29 as appropriate. In addition to the attainment of the highest
30 degree of health and safety protection for the public employee,
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1 other consideration shall be the latest available scientific
2 data in the field, the feasibility of the standard and
3 experience gained under this and other health and safety laws.
4 Whenever practicable, the standard promulgated shall be
5 expressed in terms of objective criteria and of the performance
6 desired.
7 (b) Interstate commerce.--No standards may be adopted for
8 products distributed or used in interstate commerce which are
9 different from Federal standards for the products unless the
10 standards are required by compelling local conditions and do not
11 unduly burden interstate commerce.
12 (c) Emergency.--In the event of emergency or unusual
13 situations, the secretary shall provide for an emergency
14 temporary standard to take effect immediately if the secretary
15 deems that employees are exposed to grave danger from exposure
16 to substances or agents determined to be toxic or physically
17 harmful or from new hazards and that the emergency standard is
18 necessary to protect employees from the danger. The emergency
19 standard shall be in effect not longer than 120 days and, if
20 renewed in compliance with the law governing the adoption or
21 extension of regulations, not longer than 60 additional days. On
22 or before the expiration date of the emergency standard or its
23 renewal, the secretary shall develop a permanent standard to
24 replace the emergency standard.
25 (d) Content.--A standard promulgated shall prescribe the use
26 of labels or other appropriate forms of warning as are necessary
27 to ensure that employees are apprised of hazards to which they
28 are exposed; relevant symptoms and appropriate emergency
29 treatment; and proper conditions and precautions of safe use or
30 exposure, where appropriate. A standard shall also prescribe
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1 suitable protective equipment and control procedures to be used
2 in connection with hazards and shall provide for measuring
3 employee exposure in a manner necessary for the protection of
4 employees.
5 (e) Temporary variances.--
6 (1) The employer may apply to the secretary for a
7 temporary order granting a variance from a standard or a
8 provision of a standard promulgated under this section. The
9 temporary order shall be granted only if the employer files
10 an application which meets the requirements of paragraph (4)
11 and establishes that the employer:
12 (i) Is unable to comply with a standard by its
13 effective date because of unavailability of professional
14 or technical personnel or of materials and equipment
15 needed to come into compliance with the standard or
16 because necessary construction or alteration of
17 facilities cannot be completed by the effective date.
18 (ii) Is taking all available steps to safeguard
19 employees against the hazards covered by the standard.
20 (iii) Has an effective program for coming into
21 compliance with the standard as quickly as practicable.
22 (2) A temporary order issued under this subsection shall
23 prescribe the practices, means, methods, operations and
24 processes which the employer must adopt and use while the
25 order is in effect and state in detail the employer's program
26 for coming into compliance with the standard.
27 (3) A temporary order may be granted only after notice
28 to employees and an opportunity for a hearing. The secretary
29 may issue one interim order to be effective until a decision
30 is made on the basis of the hearing. No temporary order may
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1 be in effect for longer than the period needed by the
2 employer to achieve compliance with the standard or one year,
3 whichever is shorter. An order may be renewed not more than
4 twice, if the requirements of this subsection are met and if
5 an application for renewal is filed at least 90 days prior to
6 the expiration date of the order. No interim renewal of an
7 order may remain in effect longer than 180 days.
8 (4) An application for a temporary variance order shall
9 contain:
10 (i) A specification of the standard or portion of a
11 standard from which the employer seeks a variance.
12 (ii) A representation by the employer, supported by
13 representations from qualified persons who have firsthand
14 knowledge of the facts represented, that the employer is
15 unable to comply with the standard or portion of a
16 standard and a detailed statement of the reasons
17 therefor.
18 (iii) A statement of the steps the employer has
19 taken and will take, with specific dates, to protect
20 employees against the hazard covered by the standards.
21 (iv) A statement of when the employer expects to be
22 able to comply with the standard and of what steps have
23 been taken and what steps will be taken, with specific
24 dates, to come into compliance with the standard.
25 (v) A certification that the employer has informed
26 its employees of the application by giving a copy of the
27 application to their authorized representative, by
28 posting a statement giving a summary of the application
29 and specifying where a copy may be examined at the place
30 or places where notices to employees are normally posted,
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1 and by other appropriate means. A description of how
2 employees have been informed shall be contained in the
3 certification. The information to employees shall also
4 inform them of their right to petition the secretary for
5 a hearing. The secretary is also authorized to grant a
6 variance from a standard or portion of a standard if the
7 secretary determines that the variance is necessary to
8 permit an employer to participate in an experiment,
9 approved by the secretary, designed to demonstrate or
10 validate new and improved techniques to safeguard the
11 health or safety of workers.
12 (f) General variance.--An affected employer may apply to the
13 secretary for a rule or order for a variance from a standard
14 promulgated under this section. Affected employees shall be
15 given notice of the application and an opportunity to
16 participate in a hearing. The secretary shall issue the rule or
17 order if the secretary determines--on the record, after
18 opportunity for an inspection, where appropriate, and a
19 hearing--that the proponent of the variance has demonstrated by
20 a preponderance of the evidence that the conditions, practices,
21 means, methods, operations or processes used or proposed to be
22 used by an employer will provide employment and places of
23 employment which are as safe and healthful as those which would
24 prevail if the employer complied with the standard. The rule or
25 order so issued shall prescribe the conditions the employer must
26 maintain and the practices, means, methods, operations and
27 processes which the employer must adopt and utilize, to the
28 extent they differ from the standard in question. A rule or
29 order may be modified or revoked upon application by an employer
30 or employees or by the secretary in the manner prescribed for
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1 its issuance under this subsection at any time after six months
2 from its issuance.
3 (g) Declaratory judgment.--Any person who may be adversely
4 affected by a standard or regulation issued under this section
5 may challenge the validity or applicability of such standard or
6 regulation by bringing an action for a declaratory judgment.
7 Section 7. Inspections and investigations; records.
8 (a) Inspections.--
9 (1) In order to carry out the purposes of this act, the
10 secretary, upon presenting appropriate credentials to the
11 employer, is authorized to:
12 (i) Enter, without delay, with or without notice, at
13 a reasonable time, a factory, plant, establishment,
14 construction site, workplace, environment or other area
15 where work is performed by an employee of an employer.
16 (ii) Inspect and investigate, during regular working
17 hours and at other reasonable times and within reasonable
18 limits and in a reasonable manner, a place of employment
19 and pertinent conditions, structures, machines,
20 apparatus, devices, equipment and materials in the place
21 and to question, privately, an employer or employees.
22 (2) Whenever the secretary, proceeding pursuant to this
23 section, is denied admission to a place of employment, the
24 secretary shall obtain a warrant from a court of competent
25 jurisdiction to make an inspection or investigation of the
26 place of employment. The court is authorized to issue a
27 warrant pursuant to this section and shall issue a warrant if
28 it is satisfied that the following conditions are met:
29 (i) The individual seeking the warrant is an
30 authorized agent of the department.
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1 (ii) The individual seeking the warrant has
2 established under oath or affirmation that the place of
3 employment to be investigated in accordance with this
4 section is to be inspected to determine compliance or
5 noncompliance with a standard, regulation or order or
6 that there is probable cause to believe that there is a
7 condition in or about the place of employment
8 constituting a hazard to safety or health.
9 (b) Subpoena.--In making inspections and investigations
10 under this act, the secretary may require the attendance and
11 testimony of witnesses and the production of evidence under
12 oath. Witnesses shall be paid the same fees and mileage that are
13 paid witnesses in the courts of this Commonwealth. In case of
14 contumacy or failure or refusal of a person to obey an order, a
15 court of competent jurisdiction shall have jurisdiction to issue
16 to the person an order requiring the person to appear to produce
17 evidence, if asked, and, when ordered, to give testimony
18 relating to the matter under investigation or in question.
19 Failure to obey an order of the court may be punishable by the
20 court as a contempt.
21 (c) Regulations.--The secretary shall promulgate regulations
22 requiring that a representative of the employer and a
23 representative authorized by the employees be given authority to
24 accompany the secretary or the secretary's authorized
25 representative during the physical inspection of a workplace for
26 the purpose of aiding the inspection. If there is no authorized
27 employee representative, the secretary or authorized
28 representative shall consult with a reasonable number of
29 employees concerning matters of health and safety in the
30 workplace. An employee who accompanies the secretary or a
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1 representative on an inspection may not suffer a reduction in
2 wages.
3 (d) Employee-initiated inspection.--
4 (1) An employee or a representative of employees who
5 believes that a violation of a safety or health standard
6 which (violation) threatens physical harm or that an imminent
7 danger exists may request an inspection by giving notice to
8 the secretary or an authorized representative of the
9 violation or danger. Notice shall be in writing, shall set
10 forth with reasonable particularity the grounds for the
11 notice and shall be signed by the employee or the
12 representative of employees. A copy of the notice shall be
13 provided to the employer or an agent of the employer no later
14 than the time of the inspection. Upon the request of the
15 individual giving the notice, the individual's name and the
16 names of employees referred to in the notice shall not appear
17 in the copy or in a record published, released or made
18 available under subsection (f). If, upon receipt of
19 notification, the secretary determines there are reasonable
20 grounds to believe that a violation or danger exists, the
21 secretary shall make a special inspection in accordance with
22 the provisions of this section as soon as possible, but
23 within 72 hours at the latest, to determine if a violation or
24 danger exists. The inspection need not be limited to the
25 alleged violation or danger. If the secretary determines
26 there are no reasonable grounds to believe that a violation
27 or danger exists, the secretary shall notify the employer,
28 employee or representative of employees, in writing, of the
29 determination. Notification shall not preclude future
30 enforcement action if conditions change.
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1 (2) Prior to or during an inspection of a workplace, an
2 employee or a representative of employees employed in the
3 workplace may notify the secretary or a representative of the
4 secretary responsible for conducting the inspection, in
5 writing, of a violation of this act which the employee or
6 employee representative has reason to believe exists in the
7 workplace. The secretary shall, by regulation, establish
8 procedures for review of a refusal by a representative of the
9 secretary to issue a citation with respect to an alleged
10 violation. The secretary shall furnish the employer and the
11 employees or the representative of employees requesting
12 review with a written statement of the reasons for the
13 secretary's final disposition of the case. Notification shall
14 not preclude future enforcement action if conditions change.
15 (3) If, after an inspection or investigation under this
16 subsection, the secretary notifies an employee or
17 representative of employees that a citation has not been
18 issued, the employee or representative of employees shall
19 have 15 working days from the receipt of notification to
20 inform the secretary of the desire to contest. If no notice
21 of contest is filed by an employee or representative of
22 employees, the notification shall be deemed the final order
23 of the board and not subject to review by the board, a court
24 or agency.
25 (e) Records.--
26 (1) An employer shall make, preserve and make available
27 to the secretary and the United States Secretary of Labor
28 such records regarding its activities relating to this act as
29 the secretary may prescribe by regulation as necessary or
30 appropriate for the enforcement of this act or for developing
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1 information regarding the causes and prevention of
2 occupational accidents and illnesses. In order to carry out
3 the provisions of this subsection, regulations may include
4 provisions requiring employers to conduct periodic
5 inspections. The secretary shall also issue regulations
6 requiring that employers, through posting of notices or other
7 appropriate means, keep their employees informed of their
8 protections and obligations under this act, including the
9 provisions of applicable standards.
10 (2) The secretary shall prescribe regulations requiring
11 employers to maintain accurate records of, and to make
12 periodic reports on, work-related deaths, illnesses, injuries
13 other than minor injuries which require only first aid
14 treatment and which do not involve medical treatment, loss of
15 consciousness, restriction of work or motion, or transfer to
16 another job.
17 (3) Information obtained by the secretary under this act
18 shall be obtained with a minimum burden upon employers.
19 Unnecessary duplication of efforts in obtaining information
20 shall be reduced to the maximum extent feasible.
21 (f) Handling information.--The secretary is authorized to
22 compile, analyze and publish, in either summary or detail form,
23 reports or information obtained under this section.
24 (g) Regulations.--The secretary shall prescribe regulations
25 necessary to carry out the secretary's responsibilities under
26 this section, including regulations dealing with the inspection
27 of an employer's establishment.
28 Section 8. Citation for violation.
29 (a) General rule.--If, upon inspection or investigation, the
30 secretary or an authorized representative believes that an
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1 employer has violated a provision of section 4, a regulation
2 adopted or promulgated under section 5 or a standard or order
3 adopted, promulgated or issued under section 6, the secretary
4 shall, with reasonable promptness, issue a citation to the
5 employer. A citation shall be in writing and shall describe with
6 particularity the nature of the violation, including a reference
7 to the provision of this act or the standard, regulation or
8 order alleged to have been violated. The citation shall fix a
9 reasonable time for the abatement of the violation.
10 (b) Posting.--A copy of a citation issued under this section
11 shall be prominently posted, as prescribed in regulations issued
12 by the secretary, at or near each place a violation referred to
13 in the citation occurred.
14 (c) Time.--No citation may be issued under this section
15 after the expiration of six months following the occurrence of
16 any violation.
17 Section 9. Board.
18 (a) Creation.--There is created the Public Employee
19 Occupational Safety and Health Review Board, which shall be
20 within the department for administrative purposes only. The
21 board shall consist of five members appointed by the Governor
22 from among persons who, by reason of training, education or
23 experience, are qualified to carry out the functions of the
24 board under this section. Two of the members must be sensitive
25 to the interests of employees and two of the members must be
26 sensitive to the interests of employers. The Governor shall
27 designate one of the members to serve as chairman of the board.
28 (b) Terms.--The initial chairperson, appointed by the
29 Governor, shall serve a term of five years. Thereafter, a
30 chairman shall be elected by the members for a term of four
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1 years. Two of the initial appointees shall serve terms of two
2 years. One of the initial appointees shall serve a term of three
3 years. One of the initial appointees shall serve a term of four
4 years. Appointments after initial appointments shall be for
5 terms of four years.
6 (c) Meetings.--The board shall hold monthly meetings and
7 additional meetings as it deems necessary. A majority of the
8 board shall constitute a quorum for the transaction of business.
9 Special meetings of the board may be called upon reasonable
10 notice by the chairperson or by any two members of the board.
11 (d) Hearings and regulations.--The board shall hear and rule
12 on appeals from citations, notifications and penalties issued
13 under this act and shall promulgate regulations with respect to
14 the procedural aspect of its hearings.
15 (e) Staff.--The board may employ a secretary, administrative
16 law judges and other employees as necessary.
17 (f) Compensation.--
18 (1) The chairperson and members of the board shall be
19 paid a salary to be established by the Executive Board.
20 (2) Except as set forth in paragraph (1), the salaries,
21 compensation or wages of employees of the board shall be
22 determined by the board.
23 (g) Expenses.--The members and employees of the board shall
24 be reimbursed for necessary expenses incurred in the performance
25 of their duties.
26 (h) Hearings.--
27 (1) Hearings authorized by this section may be conducted
28 by an administrative law judge appointed by the board to
29 serve in its place. The administrative law judge may be a
30 full-time employee, may serve by contract or may be paid on a
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1 per diem basis, at the discretion of the board.
2 (2) An administrative law judge appointed by the board
3 shall hear and make a determination upon proceedings
4 instituted before the board and upon motions in connection
5 with a proceeding assigned to the administrative law judge by
6 the chairperson of the board and shall make a report of a
7 determination, which constitutes the administrative law
8 judge's final disposition of the proceedings. The report of
9 the administrative law judge shall become the final order of
10 the board within 30 days after the report is issued unless,
11 within that period, a board member has directed that the
12 report shall be reviewed by the board. If a review is
13 directed, the board may proceed in accordance with section
14 10(c), except that the board may issue its order without
15 further hearings or evidence.
16 (3) In the conduct of hearings, the board or
17 administrative law judge may subpoena and examine witnesses,
18 require the production of evidence, administer oaths and take
19 testimony and depositions.
20 (4) After hearing an appeal, the board may sustain,
21 modify or dismiss a citation or penalty.
22 Section 10. Notice to employer of contest period and proposed
23 assessment; action by board.
24 (a) General rule.--If, after inspection or investigation,
25 the secretary issues a citation under section 8, the secretary
26 shall, within a reasonable time after the termination of the
27 inspection or investigation, notify the employer by certified
28 mail of the penalty, if any, proposed to be assessed under
29 section 14. Notification shall inform the employer that it has
30 15 working days from the receipt of notice within which to
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1 notify the secretary that it wishes to contest the citation or
2 proposed assessment of penalty. If the employer fails to so
3 notify the secretary within 15 days and if no notice is filed by
4 an employee or representative of employees under subsection (c)
5 within 15 days, the citation and the assessment, as proposed,
6 shall be deemed a final order of the board and not subject to
7 review by a court or agency.
8 (b) Notice of penalty.--If the secretary has reason to
9 believe that an employer has failed to correct a violation for
10 which a citation has been issued within the period permitted for
11 correction, the secretary shall notify the employer by certified
12 mail of the failure and of the penalty proposed to be assessed
13 under section 14 because of such failure. In the case of a
14 review proceeding initiated by the employer under this section
15 in good faith and not solely for delay or the avoidance of
16 penalties, the period permitted for correction of the violation
17 shall not begin to run until the entry of a final order by the
18 board. Notification by the secretary shall inform the employer
19 that it has 15 working days from the receipt of notice within
20 which to notify the secretary that it wishes to contest the
21 notification or the proposed assessment of penalty. If, within
22 15 days from receipt of notification under this subsection, the
23 employer fails to notify the secretary that it intends to
24 contest the notification or proposed assessment of penalty, the
25 notification and assessment as proposed shall be deemed a final
26 order of the board and not subject to review by a court or
27 agency.
28 (c) Review by board.--
29 (1) The secretary shall advise the board:
30 (i) If an employer or employee notifies the
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1 secretary of intent to contest a citation issued under
2 section 8(a) or a notification issued under subsection
3 (a) or (b).
4 (ii) If, within 15 days after the issuance of a
5 citation under section 8(a), an employee or
6 representative of employees files a notice with the
7 secretary alleging that the period of time fixed in the
8 citation for abatement of the violation is unreasonable.
9 (iii) If an employee or representative of employees
10 notifies the secretary of desire to contest the decision
11 of the secretary under section 7(d)(3).
12 (2) Upon notice under paragraph (1), the board shall
13 afford an opportunity for a hearing.
14 (3) The board shall, thereafter, issue an order, based
15 on findings of fact, affirming, modifying or vacating the
16 secretary's citation or proposed penalty or directing other
17 appropriate relief. The order shall become final 30 days
18 after its issuance.
19 (4) Upon a showing by an employer of a good faith effort
20 to comply with the abatement requirements of a citation and a
21 showing that abatement has not been completed because of
22 factors beyond its reasonable control, the secretary, after
23 an opportunity for a hearing as provided in this subsection,
24 shall issue an order affirming or modifying the abatement
25 requirements in the citation.
26 (5) The rules of procedure prescribed by the board shall
27 provide affected employees or representatives of affected
28 employees an opportunity to participate as parties to
29 hearings under this subsection.
30 Section 11. Appeal from board.
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1 Any person, including the secretary, who is adversely
2 affected or aggrieved by an order of the board, after all
3 administrative remedies provided by this act have been
4 exhausted, is entitled to judicial review.
5 Section 12. Discrimination against employee filing complaint.
6 The act of December 12, 1986 (P.L.1559, No.169), known as the
7 Whistleblower Law, applies to complaints, proceedings, testimony
8 and rights under this act.
9 Section 13. Injunction and mandamus.
10 (a) General rule.--A court of competent jurisdiction may,
11 upon petition by the secretary, restrain or enjoin conditions or
12 practices in a place of employment if the conditions or
13 practices are such that a danger exists which could reasonably
14 be expected to cause death or serious physical harm either
15 immediately or before the imminence of the danger can be
16 eliminated through the enforcement procedures otherwise provided
17 by this act. An order issued under this section may require
18 steps to be taken to avoid, correct or remove the imminent
19 danger and prohibit the employment or presence of an individual
20 in locations or under conditions where the imminent danger
21 exists, except an individual whose presence is necessary to
22 avoid, correct or remove the imminent danger; to maintain the
23 capacity of a continuous process operation; to resume normal
24 operations without a complete cessation of operations; or, where
25 a cessation of operation is necessary, to permit this to be
26 accomplished in a safe and orderly manner. No temporary
27 restraining order issued without notice shall be effective for
28 more than five days.
29 (b) Discovery.--If an inspector concludes that conditions or
30 practices described in subsection (a) exist in a place of
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1 employment, the inspector shall inform the affected employees
2 and employer or owner of the danger and that the inspector is
3 recommending to the secretary that relief be sought.
4 (c) Mandamus.--If the secretary arbitrarily or capriciously
5 fails to seek relief under this section, an employee who may be
6 injured by reason of the failure, or the representative of the
7 employee, may bring an action against the secretary in
8 Commonwealth Court for a writ of mandamus to compel the
9 secretary to seek an order and for such further relief as may be
10 appropriate.
11 Section 14. Civil and criminal penalties.
12 (a) Civil penalties.--In accordance with 2 Pa.C.S. Ch. 5
13 Subch. A (relating to practice and procedure of Commonwealth
14 agencies) and Ch. 7 Subch. A (relating to judicial review of
15 Commonwealth agency action), the board has the authority to
16 assess the penalties set forth in this subsection, giving due
17 consideration to the appropriateness of the penalty with respect
18 to the size of the employer being charged, the gravity of the
19 violation, the good faith of the employer and the history of
20 previous violations. Penalties collected shall be deposited into
21 the General Fund. Penalties are as follows, where penalties must
22 be assessed:
23 (1) Except as provided in paragraphs (2) and (3), an
24 employer who has received a citation for a violation of a
25 provision of this act or of a standard, rule, regulation or
26 order adopted, promulgated or issued under this act which
27 (violation) is specifically determined not to be serious may
28 be assessed a civil penalty of not more than $1,000 for each
29 violation.
30 (2) An employer who has received a citation for a
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1 violation of a provision of this act or of a standard, rule,
2 regulation or order adopted, promulgated or issued under this
3 act which (violation) is specifically determined to be
4 serious shall be assessed a civil penalty of not more than
5 $1,000 for each violation. For purposes of this paragraph, a
6 serious violation shall be deemed to exist in a workplace if
7 there is a substantial probability that death or serious
8 physical harm could result from a condition which exists, or
9 from one or more practices, means, methods, operations or
10 processes which have been adopted or are in use in the
11 workplace unless the employer did not and could not, with the
12 exercise of reasonable diligence, know of the presence of the
13 violation.
14 (3) An employer who violates posting requirements
15 prescribed or established under this act shall be assessed a
16 civil penalty of not more than $1,000 for each violation.
17 (4) In addition to the penalties provided in paragraphs
18 (1), (2) and (3):
19 (i) An employer who willfully or repeatedly violates
20 a provision of this act or of a standard, rule,
21 regulation or order adopted, promulgated or issued under
22 this act may be assessed a civil penalty of not more than
23 $10,000 for each violation.
24 (ii) An employer who fails to correct a violation
25 for which a citation has been issued within the period
26 permitted for its correction may be assessed a civil
27 penalty of not more than $1,000 for each day during which
28 the violation continues, for up to $10,000. If an
29 employer initiates a review proceeding under section 10,
30 in good faith and not solely for delaying or avoiding
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1 penalties, the period permitted for the corrections of a
2 violation shall not begin to run until the date of the
3 final order of the board.
4 (b) Criminal penalties.--Criminal penalties are as follows:
5 (1) If an employer intentionally violates this act or a
6 standard, rule, regulation or order adopted, promulgated or
7 issued under this act and if the violation causes the death
8 of an employee, the employer commits a misdemeanor of the
9 third degree and shall:
10 (i) Upon conviction for the first offense, be
11 sentenced to pay a fine of not more than $10,000 or to
12 imprisonment for not more than six months, or both.
13 (ii) Upon conviction for a subsequent offense, be
14 sentenced to pay a fine of not more than $20,000 or to
15 imprisonment for not more than one year, or both.
16 (2) A person who, without authority from the secretary,
17 or a designee, gives advance notice of an inspection to be
18 conducted under this act commits a misdemeanor of the third
19 degree and shall, upon conviction, be sentenced to pay a fine
20 of not more than $1,000 or to imprisonment for not more than
21 six months, or both.
22 (3) A person who knowingly makes a false statement,
23 representation or certification in an application, record,
24 report, plan or other document filed or required to be
25 maintained under this act commits a misdemeanor of the third
26 degree and shall, upon conviction, be sentenced to pay a fine
27 of not more than $10,000 or to imprisonment for not more than
28 six months, or both.
29 (4) A person who refuses entry to the secretary or an
30 authorized representative during an investigation or
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1 inspection under this act or who intentionally obstructs an
2 investigation under this act commits a misdemeanor of the
3 third degree and shall, upon conviction, be sentenced to pay
4 a fine of not more than $1,000 or to imprisonment for not
5 more than six months, or both.
6 (5) A person who intentionally causes bodily harm to the
7 secretary or an authorized representative during an
8 investigation or inspection under this act commits a
9 misdemeanor of the third degree and shall, upon conviction,
10 be sentenced to pay a fine of not more than $10,000 or
11 imprisonment for not more than one year, or both.
12 Section 15. Research and demonstration projects.
13 The secretary shall conduct research and undertake
14 demonstration projects relating to occupational safety and
15 health issues and problems either within the department or by
16 grants or contracts. The board may prescribe regulations
17 requiring employers to measure, record and make reports on
18 exposure of employees to toxic substances which the secretary
19 believes may endanger the health or safety of employees. The
20 secretary shall cooperate with the Director of the National
21 Health Institute for Occupational Safety and Health of the
22 Department of Health and Human Services in establishing programs
23 of medical examinations and tests as may be necessary to
24 determine the incidence of occupational illness and employee
25 susceptibility to occupational illness. Information obtained
26 under this section shall be made public without revealing the
27 names of individual workers covered by physical examination or
28 special studies and shall be made available to employers,
29 employees and their respective organizations.
30 Section 16. Education program.
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1 (a) General rule.--The secretary shall conduct, directly or
2 by grants or contracts, education programs to provide an
3 adequate supply of qualified personnel to carry out the purposes
4 of this act and information programs on the importance and
5 proper use of adequate safety and health equipment.
6 (b) Training.--The secretary may conduct, directly or by
7 grants or contracts, short-term training of personnel engaged in
8 work related to responsibilities under this act.
9 (c) Prevention.--The secretary shall provide for the
10 establishment and supervision of programs for the education and
11 training of employers and employees in the recognition,
12 avoidance and prevention of unsafe or unhealthful working
13 conditions in employment covered by this act. The secretary
14 shall consult with and advise employers, employees and their
15 organizations as to effective means of preventing occupational
16 injuries and illnesses.
17 Section 17. Reports to United States Secretary of Labor.
18 In regard to the administration and enforcement of this act,
19 the secretary shall make reports to the Secretary of Labor of
20 the United States in a form and containing information as the
21 Secretary of Labor requires.
22 Section 18. Appropriation.
23 The sum of $3,000,000, or as much thereof as may be
24 necessary, is hereby appropriated to the Department of Labor and
25 Industry for the fiscal year July 1, 1993, to June 30, 1994, to
26 carry out the purposes of this act.
27 Section 19. Severability.
28 The provisions of this act are severable. If any provision of
29 this act or its application to any person or circumstance is
30 held invalid, the invalidity shall not affect other provisions
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1 or applications of this act which can be given effect without
2 the invalid provision or application.
3 Section 20. Effective date.
4 This act shall take effect in 60 days.
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