PRINTER'S NO. 1417
No. 1204 Session of 2005
INTRODUCED BY BUXTON, BEBKO-JONES, BELARDI, BELFANTI, CALTAGIRONE, CAWLEY, COHEN, CRUZ, CURRY, DeLUCA, DeWEESE, FABRIZIO, FREEMAN, GEORGE, GOODMAN, GRUCELA, HALUSKA, JAMES, JOSEPHS, W. KELLER, KIRKLAND, KOTIK, LEACH, LESCOVITZ, LEVDANSKY, MANDERINO, MANN, McNAUGHTON, MUNDY, O'NEILL, PALLONE, PHILLIPS, RAYMOND, READSHAW, SANTONI, SHANER, SOLOBAY, STABACK, SURRA, TANGRETTI, THOMAS, TIGUE, WALKO, WHEATLEY, WOJNAROSKI AND YOUNGBLOOD, MARCH 30, 2005
REFERRED TO COMMITTEE ON LABOR RELATIONS, MARCH 30, 2005
AN ACT 1 Requiring public employers to protect the occupational safety 2 and health of their employees; and providing for enforcement 3 and penalties. 4 TABLE OF CONTENTS 5 Section 1. Short title. 6 Section 2. Legislative declaration. 7 Section 3. Definitions. 8 Section 4. Application. 9 Section 5. Duties. 10 Section 6. Regulations. 11 Section 7. Standards. 12 Section 8. Variances. 13 Section 9. Pennsylvania Occupational Safety and 14 Health Review Board. 15 Section 10. Appeal from review board.
1 Section 11. Inspection and investigation powers. 2 Section 12. Inspection and investigation of violations. 3 Section 13. Recordkeeping. 4 Section 14. Compliance orders. 5 Section 15. Enforcement procedures. 6 Section 16. Injunction proceedings. 7 Section 17. Discrimination against employees. 8 Section 18. Research and demonstration projects. 9 Section 19. Education programs. 10 Section 20. Reports to United States Secretary of Labor. 11 Section 21. Confidentiality of information obtained. 12 Section 22. Penalties. 13 Section 23. Effective date. 14 The General Assembly of the Commonwealth of Pennsylvania 15 hereby enacts as follows: 16 Section 1. Short title. 17 This act shall be known and may be cited as the Public 18 Employees Occupational Safety and Health Act. 19 Section 2. Legislative declaration. 20 The General Assembly finds and declares as follows: 21 (1) It is a basic right of all employees to work in an 22 environment that is free from hazards and risks to their 23 safety. It is the intent of the General Assembly to insure 24 that this right is also afforded to employees of the 25 Commonwealth, its counties, cities, towns, boroughs and other 26 public employers who serve the people of this Commonwealth. 27 (2) A significant percentage of all of those employed in 28 this Commonwealth are employed by the Commonwealth or by one 29 of its political subdivisions. Many of these public employees 30 perform job functions comparable to those performed by 20050H1204B1417 - 2 -
1 workers in the private sector who are protected by the United 2 States Occupational Safety and Health Act of 1970. The 3 General Assembly, therefore, finds it inappropriate to 4 continue two standards for employee safety, one applicable to 5 those who work in the private sector and one for those who 6 are employed by a public employer. 7 (3) The General Assembly has further determined that a 8 safe place in which to work is economically advantageous to 9 employers. Work-related accidents and injuries and the 10 absences caused thereby decrease employee productivity and 11 increase workers' compensation costs. In addition, unsafe 12 premises increase the risk of financial liability for 13 injuries to members of the public who frequent public 14 buildings. 15 (4) The General Assembly, in an exercise of the 16 Commonwealth's police power, charges the Secretary of Labor 17 and Industry with the responsibility to insure that all 18 public employees are afforded the same safeguards in their 19 workplace as are granted to employees in the private sector. 20 Section 3. Definitions. 21 The following words and phrases when used in this act shall 22 have the meanings given to them in this section unless the 23 context clearly indicates otherwise: 24 "Authorized employee representative." An employee authorized 25 by the employees or the designated representative of an employee 26 organization recognized or certified to represent the employees. 27 "Employee organization." An organization of any kind, or any 28 agency or employee representation committee or plan in which 29 membership includes public employees, and which exists for the 30 purpose, in whole or in part, of dealing with employers 20050H1204B1417 - 3 -
1 concerning grievances, employee-employer disputes, wages, rates 2 of pay, hours of employment or conditions of work but shall not 3 include any organization which practices discrimination in 4 membership because of race, color, creed, national origin or 5 political affiliation. 6 "Occupational Safety and Health Act" or "Federal OSHA." The 7 Occupational Safety and Health Act of 1970 (Public Law 91-596, 8 29 U.S.C. § 651 et seq.). 9 "Occupational safety and health standard." A standard which 10 requires conditions, or the adoption or use of one or more 11 practices, means, methods, operations or processes, reasonably 12 necessary or appropriate to provide safe or healthful employment 13 in places of employment. 14 "Person." One or more individuals, partnerships, 15 associations, corporations, business trusts, legal 16 representatives or any organized group of persons. 17 "Public employee" or "employee." Any individual employed by 18 a public employer. 19 "Public employer" or "employer." The Commonwealth, its 20 political subdivisions, including school districts and any 21 officer, board, commission, agency, authority or other 22 instrumentality thereof, and any nonprofit organization or 23 institution and any charitable, religious, scientific, literary, 24 recreational, health, educational or welfare institution 25 receiving grants or appropriations from Federal, State or local 26 governments but shall not include employers covered or presently 27 subject to coverage under the Occupational Safety and Health Act 28 of 1970 (Public Law 91-596, 29 U.S.C. § 651 et seq.). 29 "Review board." The Pennsylvania Occupational Safety and 30 Health Review Board established under this act. 20050H1204B1417 - 4 -
1 "Secretary." The Secretary of Labor and Industry of the 2 Commonwealth or his or her designated agent. 3 Section 4. Application. 4 (a) Uniformity.--Any occupational safety or health standards 5 promulgated under the provisions of this act shall apply to all 6 public employers and public employees, and the Secretary shall 7 have authority to enforce such standards in accordance with the 8 provisions of this act. 9 (b) Nonapplication.--Nothing in this act shall be construed 10 to supersede or in any manner affect any workers' compensation 11 law or to enlarge, diminish or affect in any manner common law 12 or statutory rights, duties or liabilities of employers or 13 employees under any law with respect to injuries, diseases or 14 death of employees arising out of and in the course of 15 employment. 16 (c) Federal law.--Notwithstanding any other provision in 17 this act, an occupational safety or health standard promulgated 18 under this act shall apply only to employees not covered by a 19 Federal occupational safety or health standard promulgated under 20 section 6 of the Occupational Health and Safety Act or 21 amendments thereto. 22 Section 5. Duties. 23 (a) Hazard-free location.--Each employer shall furnish to 24 each of its employees, employment and a place of employment free 25 from recognized hazards that are causing or are likely to cause 26 death or serious physical harm to its employees and which will 27 provide reasonable and adequate protection to the lives, safety 28 or health of its employees. 29 (b) Compliance.--Each employer shall comply with the 30 occupational safety and health standards promulgated under this 20050H1204B1417 - 5 -
1 act. 2 (c) Statement.--Each employer shall, upon the written 3 request of any employee, furnish such employee with a written 4 statement listing the substances which the employee uses or with 5 which the employee comes into contact that have been identified 6 as toxic or hazardous by occupational health and safety 7 standards, under CFR 1910.1000 (relating to air contaminants), 8 and/or pursuant to the act of June 21, 1957 (P.L.390, No.212), 9 referred to as the Right-to-Know Law. 10 (d) Compliance.--Each employee and employer shall comply 11 with occupational safety and health standards and all rules, 12 regulations and orders issued pursuant to this act which are 13 applicable to his or her own actions and conduct. 14 (e) Plan.--The Commonwealth shall promulgate a plan for the 15 development and enforcement of occupational safety and health 16 standards with respect only to public employers and employees, 17 in accordance with section 18(b) of the Occupational Safety and 18 Health Act, which provides: "Any State which, at any time, 19 desires to assume responsibility for development and enforcement 20 therein of occupational safety and health standards relating to 21 any occupational safety or health issue with respect to which a 22 Federal standard has been promulgated under section 6 shall 23 submit a State plan for the development of such standards and 24 their enforcement." 25 Section 6. Regulations. 26 The secretary may promulgate such procedural regulations as 27 he or she shall consider necessary and proper to effectuate the 28 purposes and provisions of this act and shall: 29 (1) Provide for the preparation, adoption, amendment or 30 repeal of regulations governing the conditions of employment 20050H1204B1417 - 6 -
1 of general and special application in all workplaces. 2 (2) Provide a method of encouraging employers and 3 employees in their efforts to reduce the number of safety and 4 health hazards arising from undesirable or inappropriate 5 working conditions at the workplace and of stimulating 6 employers and employees to institute new and to perfect 7 existing programs for providing safe and healthful working 8 conditions. 9 (3) Provide for appropriate reporting procedures by 10 employers with respect to such information relating to 11 conditions of employment as will assist in achieving the 12 objectives of this act. 13 (4) Provide for the frequency, method and manner of 14 making inspections of workplaces without advance notice, 15 provided that, in the event of an emergency or unusual 16 situation, the secretary may give advance notice. 17 (5) Provide for the publication and dissemination to 18 employers, employees and labor organizations, and the 19 posting, where appropriate, by employers of informational, 20 educational or training materials designed to aid and assist 21 in achieving the objectives of this act. 22 (6) Provide for the establishment of new and the 23 perfection and expansion of existing programs for 24 occupational safety and health education for employers and 25 employees and institute methods and procedures for the 26 establishment of a program for voluntary compliance by 27 employers and employees with the requirements of this act and 28 all applicable occupational safety and health standards and 29 regulations promulgated pursuant to the authority of this 30 act. 20050H1204B1417 - 7 -
1 Section 7. Standards. 2 (a) Adoption.--The secretary shall by rule adopt all 3 occupational safety and health standards, amendments or changes 4 adopted or recognized by the United States Secretary of Labor 5 under the authority of the Occupational Safety and Health Act in 6 order to provide reasonable and adequate protection to the 7 lives, safety and health of public employees. The secretary 8 shall promulgate and repeal such regulations as may be necessary 9 to conform to the standards established pursuant to the United 10 States Occupational Safety and Health Act or pursuant to 11 subsection (b). Where no Federal standards are applicable, the 12 secretary shall provide for the development of such State 13 standards as may be necessary in special circumstances. 14 (b) Exception.--No standards shall be adopted for products 15 distributed or used in interstate commerce which are different 16 from Federal standards for such products unless such standards 17 are required by compelling local conditions and do not unduly 18 burden interstate commerce. 19 (c) Challenge.--Any person who may be adversely affected by 20 a standard or regulation issued under this act may challenge the 21 validity or application of such standard or regulation by 22 bringing an action for declaratory judgment. 23 Section 8. Variances. 24 (a) Requirements.--Any public employer may apply to the 25 secretary for a temporary order granting a variance from a 26 standard or any provision thereof promulgated under this act. A 27 temporary order shall be granted only if the employer files an 28 application that meets the requirements of subsection (b) and 29 establishes that: 30 (1) the employer is unable to comply with a standard by 20050H1204B1417 - 8 -
1 its effective date because of unavailability of professional 2 or technical personnel or of materials and equipment needed 3 to come into compliance with the standard or because 4 necessary construction or alteration of facilities cannot be 5 completed by the effective date. 6 (2) The employer is taking all available steps to 7 safeguard employees against the hazards covered by the 8 standard. 9 (3) The employer has an effective program for coming 10 into compliance with the standard as quickly as practicable. 11 Any temporary order issued under this section shall prescribe 12 the practices, means, methods, operations and processes which 13 the employer must adopt and use while the order is in effect and 14 state in detail the employer's program for coming into 15 compliance with the standard. A temporary order may be granted 16 only after notice to employees and an opportunity for a hearing, 17 provided that the secretary may issue one interim order to be 18 effective until a decision is made on the basis of the hearing. 19 A temporary order shall not be in effect for longer than the 20 period needed by the employer to achieve compliance with the 21 standard or one year, whichever is shorter, except that such an 22 order may be renewed not more than twice if the requirements of 23 this section are met and if an application for renewal is filed 24 at least 90 days prior to the expiration date of the order. An 25 interim renewal of an order shall not remain in effect longer 26 than 180 days. 27 (b) Temporary variance.--An application for a temporary 28 variance order shall contain: 29 (1) a specification of the standard or portion thereof 30 from which the employer or owner seeks a variance; 20050H1204B1417 - 9 -
1 (2) a representation by the employer, supported by 2 representations from qualified persons who have firsthand 3 knowledge of the facts represented, that the employer is 4 unable to comply with the standard or portion thereof, and a 5 detailed statement of the reasons therefor; 6 (3) a statement of the steps the employer has taken and 7 will take, with specific dates, to protect employees against 8 the hazard covered by the standard; 9 (4) a statement of when the employer expects to be able 10 to comply with the standard and what steps the employer has 11 taken and will take, with dates specified, to come into 12 compliance with the standard; and 13 (5) a certification that the employer has informed its 14 employees of the application by giving a copy thereof to 15 their authorized representative, posting a statement giving a 16 summary of the application and specifying where a copy may be 17 examined at the place or places where notices to employees 18 are normally posted and by other appropriate means. 19 A description of how employees have been informed shall be 20 contained in the certification. The information to employees 21 shall also inform them of their right to petition the secretary 22 for a hearing. 23 (c) Experimental program.--The secretary is authorized to 24 grant a variance from any standard or portion thereof whenever 25 he or she determines that such variance is necessary to permit 26 an employer to participate in an experimental program approved 27 by the secretary, which is designed to demonstrate or validate 28 new and improved techniques to safeguard the health or safety of 29 workers. 30 (d) Notice to employees.--An affected employer may apply to 20050H1204B1417 - 10 -
1 the secretary for a rule or order for a variance from a standard 2 promulgated under this act. Affected employees shall be given 3 notice of each such application an opportunity to participate in 4 a hearing. The secretary shall issue a rule or order if he or 5 she determines on the record, after opportunity for an 6 inspection where appropriate and a hearing, that the proponent 7 of the variance has demonstrated by a preponderance of the 8 evidence that the conditions, practices, means, methods, 9 operations or processes used or proposed to be used by an 10 employer will provide employment and places of employment which 11 are as safe and healthful as those which would prevail if he 12 complied with the standard. The rule or order shall prescribe 13 the conditions the employer must maintain, and the practices, 14 means, methods, operations and processes which he or she must 15 adopt and utilize to the extent they differ from the standard in 16 question. A rule or order may be modified or revoked upon 17 application by an employer, any employee or employee 18 representative, or by the secretary on his or her own motion, in 19 the manner prescribed for its issuance under this section at any 20 time after six months from its issuance. 21 (e) Challenge.--A person who may be adversely affected by a 22 standard or regulation issued under this section may challenge 23 the validity or applicability of such standard or regulation by 24 bringing an action for declaratory judgment. 25 Section 9. Pennsylvania Occupational Safety and Health Review 26 Board. 27 (a) Board established.--The Pennsylvania Occupational Safety 28 and Health Review Board is established to have and exercise the 29 powers, duties and prerogatives provided by the provisions of 30 this act. The review board shall consist of five persons 20050H1204B1417 - 11 -
1 appointed by the Governor from among persons who by reason of 2 training, education or experience are qualified to carry out the 3 functions of the review board under this act. 4 (b) Terms.--Members shall serve terms of four years and 5 until their successors are appointed. The Governor shall 6 designate one of the members to serve as chairperson. 7 (c) Hearings, appeals.--A member of the board shall hear and 8 rule on appeals from compliance orders, notifications and 9 penalties issued under the provisions of this act. 10 (d) Regulations.--The secretary shall adopt and promulgate 11 rules and regulations with respect to the procedural aspect of 12 the review board hearings. 13 (e) Per diems, schedules.--Any review board member hearing 14 an appeal or appeals under the provision of this act shall be 15 paid a per diem amount to be determined by the secretary. The 16 members shall alternate the hearing of such appeals according to 17 a schedule adopted by the secretary. If a member is unable to 18 hear an appeal, the next available member, in accordance with 19 the schedule, shall hear the appeal. A member shall be selected 20 to hear the appeal within 30 days after the date it was filed. 21 (f) Staff.--Any staff necessary for the purposes of such 22 hearing shall be provided by the Department of Labor and 23 Industry. 24 (g) Powers.--In the conduct of hearings the review board 25 member may subpoena and examine witnesses, require the 26 production of evidence, administer oaths and take testimony and 27 depositions. 28 (h) Final action.--After hearing an appeal, the review board 29 member may sustain, modify or dismiss a compliance order or 30 penalty, provided such decision shall be issued within 120 days 20050H1204B1417 - 12 -
1 after the appeal was filed. 2 Section 10. Appeal from review board. 3 Any person, including the secretary, adversely affected or 4 aggrieved by an order of the review board, after all 5 administrative remedies provided by this act have been 6 exhausted, is entitled to judicial review. 7 Section 11. Inspection and investigation powers. 8 (a) Authorization.--In order to carry out the purposes of 9 this act, the secretary or his or her designated agent, upon 10 presenting appropriate credentials to the employer, is 11 authorized to enter without advance notice and at reasonable 12 times any workplace or environment where work is performed by an 13 employee of an employer and to inspect and investigate, during 14 regular working hours and at other reasonable times and in a 15 reasonable manner, any such place of employment and all 16 pertinent conditions, structures, machines, apparatus, devices, 17 equipment and the materials therein and to question, privately, 18 any such employer or employee. Whenever the secretary, 19 proceeding pursuant to this section, is denied admission to any 20 such place of employment, he or she shall obtain a warrant to 21 make an inspection or investigation of such place of employment 22 from any judge of the Commonwealth Court. 23 (b) Witnesses and evidence.--In making his or her 24 inspections and investigations under this section, the secretary 25 may require the attendance and testimony of witnesses and the 26 production of evidence under oath. Witnesses shall be paid the 27 same fees and mileage that are paid witnesses in the courts of 28 this Commonwealth. In case of a failure or refusal of any person 29 to obey such an order, the common pleas court for the judicial 30 district wherein such person resides, is found or transacts 20050H1204B1417 - 13 -
1 business shall issue to such person an order requiring such 2 person to appear to produce evidence if asked and when so 3 ordered and to give testimony relating to the matter under 4 investigation or in question. Any failure to obey such order of 5 the court may be punished by the court as a contempt thereof. 6 (c) Authorized accompanying persons.--Subject to regulations 7 issued by the secretary, a representative of the employer and a 8 representative authorized by the employees shall be given an 9 opportunity to accompany the secretary or his or her authorized 10 representative during the physical inspection of any workplace 11 for the purposes of aiding such inspection. Where there is no 12 authorized employee representative, the secretary or his or her 13 authorized representative shall consult with a reasonable number 14 of employees concerning matters of health and safety in the 15 workplace. No employee who accompanies the secretary or his or 16 her authorized representative on an inspection shall suffer any 17 reduction in wages. 18 Section 12. Inspection and investigation of violations. 19 (a) Request for inspection.--Any employee or authorized 20 employee representative who believes that a violation of an 21 occupational safety or health standard exists or that an 22 imminent danger exists may request an inspection by giving 23 notice to the secretary of such violation or danger. The notice 24 and request shall be in writing, shall set forth with reasonable 25 particularity the grounds for the notice and shall be signed by 26 the employee or representative of employees. A copy of the 27 notice shall be provided by the secretary to the employer or its 28 agent no later than the time of inspection, except that, on the 29 request of the person giving such notice, the names of 30 individual employees or representatives of employees shall be 20050H1204B1417 - 14 -
1 kept confidential. 2 (b) Inspection warranted.--Whenever the secretary receives a 3 request for inspection and determines that there are reasonable 4 grounds to believe that such violation or danger exists, he or 5 she shall make an inspection as soon as practicable to determine 6 if such violation or danger exists. The inspection may be 7 limited to the alleged violation or danger. If the secretary 8 determines there are no reasonable grounds to believe that such 9 violation or danger exists, he or she shall notify the employer, 10 employee or representative of employees in writing of such 11 determination. The notification shall not preclude future 12 enforcement action if conditions change. 13 (c) Notice of suspected violations.--Prior to or during any 14 inspection of a workplace, any employee or representative of 15 employees employed in such workplace may notify the secretary or 16 any representative of the secretary responsible for conducting 17 the inspection in writing of any violation of this act which 18 they have reason to believe exists in the workplace. The 19 secretary shall by regulation establish procedures for informal 20 review of any refusal by a representative of the secretary to 21 issue a citation with respect to any such alleged violation and 22 shall furnish the employer and the employees or representative 23 of the employees requesting such review a written statement of 24 the reasons for the secretary's final disposition of the case. 25 The notification shall not preclude future enforcement action if 26 conditions change. 27 (d) Authorization.--The secretary is authorized to compile, 28 analyze and publish in either summary or detailed form all 29 reports or information obtained under this section. 30 (e) Regulations.--The secretary shall prescribe such rules 20050H1204B1417 - 15 -
1 and regulations as he may deem necessary to carry out his 2 responsibilities under this act, including rules and regulations 3 dealing with the inspection of an employer's or owner's 4 establishment. 5 Section 13. Recordkeeping. 6 (a) Employer duties.--In accordance with the secretary's 7 regulations, each employer shall make, keep and preserve and 8 make available to the secretary such records regarding its 9 activities relating to this act as the secretary deems necessary 10 or appropriate for developing information regarding the causes 11 and prevention of occupational accidents and illness. Such 12 regulations may include provisions requiring employers to 13 conduct periodic inspections. The secretary also shall issue 14 regulations requiring that employers, through posting of 15 notices, training or other appropriate means, keep their 16 employees informed of their protections and obligations under 17 this act, including the provisions and regulations of this act. 18 (b) Work-related injuries, illnesses and death.--The 19 secretary shall prescribe regulations requiring employers to 20 maintain accurate records and to make public periodic reports of 21 work-related deaths, injuries and illnesses, other than minor 22 injuries requiring only first aid treatment and not involving 23 lost time from work, medical treatment, loss of consciousness, 24 restriction of work or motion or transfer to another job. 25 (c) Exposure to toxic materials.--The secretary shall issue 26 regulations requiring employers to maintain accurate records of 27 employee exposures to potentially toxic materials or harmful 28 physical agents which are required to be monitored or measured 29 under any occupational health and safety standard adopted under 30 this act. The regulations shall provide employees or their 20050H1204B1417 - 16 -
1 representatives with an opportunity to observe such monitoring 2 or measuring and have access to the records thereof. The 3 regulations shall make appropriate provisions for each employee 4 or former employee to have access to such records as will 5 indicate his or her own exposure to toxic materials or harmful 6 physical agents. Each employer shall promptly notify any 7 employee who has been or is being exposed to toxic materials or 8 harmful physical agents in concentrations or at levels which 9 exceed those prescribed by an occupational safety and health 10 standard promulgated under this act and shall inform any 11 employee who is being thus exposed of the corrective action 12 being taken. 13 Section 14. Compliance orders. 14 (a) Issuance.--Whenever the secretary, upon inspection or 15 investigation, determines that an employer has violated a 16 provision of this act or an occupational safety or health 17 standard or regulation promulgated under this act, he or she 18 shall with reasonable promptness issue a compliance order to the 19 employer. Each compliance order will be in writing and shall 20 describe the nature of the violation, including a reference to 21 the provision of the act or the standard, regulation or order 22 alleged to have been violated. The compliance order shall fix a 23 reasonable time for the abatement of the violation. 24 (b) Posted.--Each compliance order issued under this section 25 or a copy or copies thereof shall be prominently posted as 26 prescribed in regulations issued by the secretary at or near 27 each place a violation referred to in the compliance order 28 occurred and at such locations within the workplace reasonably 29 accessible to the employees. 30 Section 15. Enforcement procedures. 20050H1204B1417 - 17 -
1 (a) Employer notification.--If, after inspection or 2 investigation, the secretary issues a compliance order pursuant 3 to section 14 (relating to compliance orders), he or she shall, 4 within a reasonable time after the termination of such 5 inspection or investigation, notify the employer by certified 6 mail of the penalty, if any, proposed to be assessed pursuant to 7 section 17 (relating to discrimination against employees). Such 8 notification shall inform the employer that it has 15 working 9 days from the receipt of notice within which to notify the 10 secretary that it wishes to contest the compliance order or 11 proposed assessment of penalty. If the employer fails to so 12 notify the secretary within 15 days and if no notice is filed by 13 any employee or representative of employees pursuant to 14 subsection (c) within 15 days, the compliance order and the 15 assessment, as proposed, shall be deemed a final order of the 16 secretary and not subject to review by any court or agency. 17 (b) Compliance failure.--If the secretary has reason to 18 believe that an employer has failed to correct a violation for 19 which a compliance order has been issued within the period 20 permitted for such correction, the secretary shall notify the 21 employer by certified mail of the failure and of the penalty 22 proposed to be assessed pursuant to section 17 by reason of such 23 failure, provided that, in the case of a review proceeding 24 initiated by the employer under this section in good faith and 25 not solely for delay or the avoidance of penalties, the period 26 permitted for correction of the violation shall not begin to run 27 until the entry of a final order by the review board. The 28 notification by the secretary shall inform the employer that it 29 has 15 working days from the receipt of the notice within which 30 to notify the secretary that it wishes to contest the 20050H1204B1417 - 18 -
1 notification or the proposed assessment of penalty. If, within 2 15 days from receipt of notification under this section, the 3 employer fails to notify the secretary that it intends to 4 contest the notification or proposed assessment of penalty, the 5 notification and assessment as proposed shall be deemed a final 6 order of the review board and not subject to review by any court 7 or agency. 8 (c) Contesting of order.--If an employer notifies the 9 secretary that it intends to contest a compliance order issued 10 under section 14(a) or a notification issued under subsection 11 (a) or (b) of this section, or if, within 15 days after the 12 issuance of a compliance order issued under section (14)(a), any 13 employee or employee representative files a notice with the 14 secretary alleging that the period of time fixed in the 15 compliance order for abatement of the violation is unreasonable, 16 the secretary shall immediately advise the review board of such 17 notification, and the review board shall afford an opportunity 18 for a hearing. The review board shall thereafter issue an order 19 based on findings of fact affirming, modifying or vacating the 20 secretary's compliance order or proposed penalty or directing 21 other appropriate relief. The order shall become final 30 days 22 after its issuance. Upon a showing by an employer of a good 23 faith effort to comply with the abatement requirements of a 24 compliance order and a showing that abatement has not been 25 completed because of factors beyond the employer's reasonable 26 control, the secretary, after an opportunity for a hearing as 27 provided in this subsection, shall issue an order affirming or 28 modifying the abatement requirements in such compliance order. 29 The rules of procedure prescribed by the secretary shall provide 30 affected employees or employee representatives of affected 20050H1204B1417 - 19 -
1 employees an opportunity to participate as parties to hearings 2 under this subsection. 3 Section 16. Injunction proceedings. 4 (a) Commonwealth Court.--The Commonwealth Court shall have 5 jurisdiction upon petition of the secretary, pursuant to the law 6 and general rules, to restrain any conditions or practices in 7 any place of public employment which are such that a danger 8 exists which could reasonably be expected to cause death or 9 serious physical harm immediately or before the imminence of 10 such danger can be eliminated through the abatement procedures 11 otherwise provided for by this act. Any order issued under this 12 section shall require such steps to be taken as may be necessary 13 to avoid, correct or remove such imminent danger and prohibit 14 the employment or presence of any individual in locations or 15 under conditions where such imminent danger exists, except 16 individuals whose presence is necessary to avoid, correct or 17 remove such imminent danger. No temporary restraining order 18 issued without notice shall be effective more than five days. 19 (b) Inform employees.--Whenever and as soon as an inspector 20 concludes that conditions or practices described in subsection 21 (a) exist in any place of public employment, he or she shall 22 inform the affected employees and employers of the danger and 23 shall further inform such persons that he or she is recommending 24 to the secretary that relief be sought. 25 (c) Employee actions.--If the secretary arbitrarily or 26 capriciously fails to seek relief under this section, any 27 employee who may be injured by reason of such failure, or the 28 authorized employee representative of such employees may bring 29 an action against the secretary in the Commonwealth Court to 30 compel the secretary to seek such an order and for such further 20050H1204B1417 - 20 -
1 relief as may be appropriate. 2 Section 17. Discrimination against employees. 3 (a) Prohibition.--An employer or any other person shall not 4 discriminate against any employee because such employee has 5 filed any complaint or instituted or caused to be instituted any 6 proceeding under or related to this act, or has testified or is 7 about to testify in any such proceeding, or because of the 8 exercise by such employee on their behalf or on behalf of 9 others, of any right afforded by this act. 10 (b) Complaint.--Any employee who believes that he or she has 11 been discharged, disciplined or otherwise discriminated against 12 by any person in violation of this section may, within 30 days 13 after such violation occurs, file a complaint with the secretary 14 alleging such discrimination. Upon receipt of the complaint, the 15 secretary shall cause investigation to be made as deemed 16 appropriate and shall, if requested, withhold the name of the 17 complainant from the employer. If, upon investigation, the 18 secretary determines that the provisions of this section have 19 been violated, the secretary shall request the Attorney General 20 to bring an action in the Commonwealth Court against the person 21 or persons alleged to have violated this act. In any such action 22 the Commonwealth Court shall have jurisdiction for cause shown 23 to restrain violations of this act and order all appropriate 24 relief, including reinstatement of the employee to his or her 25 former position with back pay and benefits. 26 (c) Determination.--Within 90 days of receipt of a complaint 27 filed under this section, the secretary shall notify the 28 complainant and his representative by registered mail of his or 29 her determination of such complaint. 30 (d) Rights preserved.--Nothing in this act shall be deemed 20050H1204B1417 - 21 -
1 to diminish the rights of any employee under any law, rule or 2 regulation or under any collective bargaining agreement. 3 Section 18. Research and demonstration projects. 4 The secretary shall conduct research and undertake 5 demonstration projects relating to occupational safety and 6 health issues and problems either within the Department of Labor 7 and Industry or by grants or contracts. The secretary may 8 prescribe regulations requiring employers to measure, record and 9 make reports on exposure of employees to toxic substances which 10 the secretary believes may endanger the health or safety of 11 employees. The secretary shall cooperate with the Director of 12 the National Institute for Occupational Safety and Health of the 13 Department of Health and Human Services of the United States in 14 establishing such programs of medical examinations and tests as 15 may be necessary to determine the incidence of occupational 16 illnesses and employee susceptibility to such illnesses. Such 17 programs, on the request of the employer, may be paid for by the 18 secretary together with such other assistance as may be 19 required. Information obtained under this act shall be made 20 public without revealing the names of individual workers covered 21 by physical examination or special studies and shall be made 22 available to employers, employees and their respective 23 organizations. 24 Section 19. Education programs. 25 (a) Adequate personnel.--The secretary shall conduct 26 directly or by grants or contracts education programs to provide 27 an adequate supply of qualified personnel to carry out the 28 purposes of this act and informational programs on the 29 importance and proper use of adequate safety and health 30 equipment. 20050H1204B1417 - 22 -
1 (b) Short-term training.--The secretary is authorized to 2 conduct directly or by grants or contracts short-term training 3 of personnel engaged in work related to the secretary's 4 responsibilities under this act. 5 (c) Avoidance and prevention.--The secretary shall provide 6 for the establishment and supervision of programs for the 7 education and training of employers, owners and employees in the 8 recognition, avoidance and prevention of unsafe or unhealthful 9 working conditions in employment covered by this act. The 10 secretary shall consult with and advise owners and employers, 11 employees and organizations representing employers, owners and 12 employees as to effective means of preventing occupational 13 injuries and illnesses. 14 Section 20. Reports to United States Secretary of Labor. 15 In regard to the administration and enforcement of this act, 16 the secretary shall make such reports to the Secretary of Labor 17 of the United States in such form and containing such 18 information as the secretary shall time to time require. 19 Section 21. Confidentiality of information obtained. 20 All information reported to or otherwise obtained by the 21 secretary or his or her representatives or any member of the 22 review board in connection with any inspection or proceeding 23 under this act which contains or might reveal a trade secret 24 shall be considered confidential, provided that such information 25 may be disclosed to other officers or employees concerned with 26 carrying out this act or when relevant in any proceeding under 27 this act. In any such proceedings the secretary, the review 28 board or the court shall issue such orders as may be appropriate 29 to protect the confidentiality of trade secrets. 30 Section 22. Penalties. 20050H1204B1417 - 23 -
1 (1) Any employer who willfully or repeatedly violates 2 the requirements of section 4 (relating to application) or 5 3 (relating to duties), any occupational health and safety 4 standard promulgated pursuant to section 6 or regulations 5 prescribed pursuant to this act may be assessed a civil 6 penalty of not more than $10,000 for each violation. 7 (2) Any employer who has received a compliance order for 8 a serious violation of the requirements of section 4 or 5, 9 any occupational health and safety standard promulgated 10 pursuant to section 6 (relating to regulations) or 11 regulations prescribed pursuant to this act shall be assessed 12 a civil penalty of up to $1,000 for each violation. 13 (3) Any employer who has received a compliance order for 14 a violation of the requirements of sections 4 or 5, any 15 occupational health and safety standard promulgated pursuant 16 to section 6 or regulations prescribed pursuant to this act, 17 which violation has been determined not to be of a serious 18 nature, may be assessed a civil penalty of up to $1,000 for 19 each violation. 20 (4) Any employer who fails to correct a violation for 21 which compliance order has been issued under section 15 22 (relating to enforcement procedures) within the period 23 permitted for its correction which period shall not begin to 24 run until the date of the final order of the board in the 25 case of any review proceeding under section 16 (relating to 26 injunction proceedings) initiated by the employer in good 27 faith and not solely for delay or avoidance of penalties may 28 be assessed a civil penalty of not more than $1,000 for each 29 day during which such failure or violation continues. 30 (5) Any employer who willfully violates any standard or 20050H1204B1417 - 24 -
1 order promulgated pursuant to section 6 or of any regulation 2 adopted pursuant to this act, which violation caused death to 3 any employee shall be fined not more than $10,000 or 4 imprisoned not more than six months or both provided that, if 5 the conviction is for a violation committed after a first 6 conviction of such person, punishment shall be by fine of not 7 more than $20,000 or by imprisonment for not more than one 8 year or both. 9 (6) Any person who gives advance notice of any 10 inspection to be conducted under this act without authority 11 from the secretary or his or her designees shall be fined not 12 more than $1,000 or imprisoned not more than six months or 13 both. 14 (7) Any person who knowingly makes any false statement, 15 representation or certification in any application, record, 16 report, plan or other document filed or required to be 17 maintained under this act shall be fined not more than 18 $10,000 or imprisoned not more than six months, or both. 19 (8) Any employer who violates any of the posting 20 requirements as prescribed under this act shall be assessed a 21 civil penalty of up to $1,000 for each violation. 22 (9) Any employer who refuses entry to any authorized 23 representative of the secretary while such representative is 24 attempting to conduct an investigation or inspection pursuant 25 to the provisions of this act or in any way willfully 26 obstructs him from carrying out his investigation or 27 inspection shall be fined not more than $1,000 or imprisoned 28 not more than six months or both. 29 (10) Any employer or individual who willfully causes 30 bodily harm to any authorized representative of the secretary 20050H1204B1417 - 25 -
1 while such representative is attempting to conduct an 2 investigation or inspection pursuant to the provision of this 3 act shall be fined not more than $10,000 or imprisoned not 4 more than one year or both. 5 (11) The review board shall have authority to assess all 6 civil penalties provided in this act, giving due 7 consideration to the appropriateness of the penalty with 8 respect to the size of the business of the employer being 9 charged, the gravity of the violation, the good faith of the 10 employer and the history of previous violations. 11 (12) For the purposes of this act, a serious violation 12 shall be deemed to exist in a place of employment if there is 13 a substantial probability that death or serious physical harm 14 could result from a condition which exists or from one or 15 more practices, means, methods, operations or processes which 16 have been adopted or are in use in such place of employment 17 unless the employer did not and could not with the exercise 18 of reasonable diligence know of the presence of the 19 violation. 20 (13) Civil penalties owed under this chapter shall be 21 paid to the secretary for deposit in to the treasury of the 22 Commonwealth and may be recovered in a civil action in the 23 name of the Commonwealth brought in the Commonwealth Court. 24 (14) Any person who violates section 22 (relating to 25 penalties) shall be fined not more than $1,000 or imprisoned 26 not more than one year or both. In the event that such person 27 is an officer or employee responsible for carrying out the 28 provisions of this act, he or she shall be removed from 29 office or employment upon conviction under this section. 30 Section 23. Effective date. 20050H1204B1417 - 26 -
1 This act shall take effect in 60 days. C7L35JLW/20050H1204B1417 - 27 -