THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY GIBBONS, CALTAGIRONE, GOODMAN, JOSEPHS, KULA, MOUL AND M. O'BRIEN, JUNE 8, 2011

REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, JUNE 8, 2011  

AN ACT

Providing for public employee occupational health and safety,

for standards and procedures and for further duties of the

Department of Labor and Industry; establishing the Public

Employee Occupational Safety and Health Review Board and

providing for its powers and duties; and providing for the

establishment of various advisory committees, for enforcement

and for civil and criminal penalties.

TABLE OF CONTENTS

Chapter 1.  Preliminary Provisions

Section 101.  Short title.

Section 102.  Declaration of policy.

Section 103.  Definitions.

Chapter 3.  Public Employee Health and Safety

Section 301.  Application of health and safety standards.

Section 302.  Duties of public employers.

Section 303.  Powers and duties of department.

Section 304.  Advisory committee.

Section 305.  Work environment inspectors.

Section 306.  Work environment committees.

Section 307.  Inspections.

Section 308.  Recordkeeping.

Section 309.  Adverse action against employees.

Section 310.  Right to work under safe conditions.

Section 311.  Asbestos abatement.

Section 312.  Public Employee Occupational Safety and Health

Review Board.

Section 313.  Variances.

Chapter 5.  Enforcement

Section 501.  Enforcement orders.

Section 502.  Imminent danger.

Section 503.  Citations.

Section 504.  Notice of penalty.

Section 505.  Proceedings by department.

Section 506.  Injunctive relief.

Section 507.  Failure of secretary to act.

Section 508.  Follow-up inspection.

Section 509.  Penalties.

Section 510.  Civil actions.

Chapter 11.  Miscellaneous Provisions

Section 1101.  Effective date.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

CHAPTER 1

PRELIMINARY PROVISIONS

Section 101.  Short title.

This act shall be known and may be cited as the Public

Employee Occupational Safety and Health Act.

Section 102.  Declaration of policy.

The General Assembly finds and declares as follows:

(1)  It is a basic right of all employees to work in an

environment that is as free from hazards and risks to their

safety and health as possible. This right should be afforded

to public employees, who should not be exposed to workplace

hazards any more than private sector employees.

(2)  A significant percentage of employees in this

Commonwealth are employed by the Commonwealth or by one of

its political subdivisions. Many of these public employees

perform job functions comparable to those performed by

workers in the private sector.

(3)  A safe place in which to work is economically

advantageous to employers. Work-related accidents and

injuries, and the absences caused thereby, decrease employee

productivity and increase workers' compensation costs. Unsafe

workplaces increase the risk of financial liability for

injuries to members of the public who frequent public

buildings. Occupational illnesses deplete the pool of human

resources and increase medical expenditures. For public

employees and their dependents, occupational accidents and

illnesses pose a serious threat to finances, security and

mental and physical well-being.

(4)  Greater protection of the health and safety of

public employees will assist government bodies to deliver

needed public services in a safe, efficient and cost-

effective manner.

(5)  Under the Occupational Safety and Health Act of 1970

(Public Law 91-596, 29 U.S.C. § 651 et seq.), Congress deems

it necessary to protect the safety and health of workers

employed in the private sector. The OSHA Act was enacted to

"assure so far as possible every working man and woman in the

Nation safe and healthful working conditions and to preserve

our human resources." To provide at least as much protection

to public employees as is provided to employees in the

private sector by the OSHA Act, the standards and regulations

under the OSHA Act should be adopted and applied to public

employees. Accordingly, the General Assembly hereby exercises

its statutory authority to establish and enforce rules,

standards and regulations protecting the health and safety of

all employees of this Commonwealth and its political

subdivisions.

(6)  Swift and effective enforcement of the provisions of

this act is vital to ensure that the health and safety of

public employees is protected.

Section 103.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Adverse action."  Any action by an employer which adversely

affects a worker with respect to any terms or conditions of

employment or opportunity for promotion. The term includes, but

is not limited to, the action of dismissal, layoff, suspension,

demotion, transfer of job or location, reduction in wages,

changes in hours or conditions of work or reprimand.

"Advisory committee."  The Public Employee Safety and Health

Advisory Committee.

"Authorized employee representative."  An employee authorized

by the employees to represent them, or the designated

representative of an employee organization recognized or

certified to represent the employees. The term includes "employe

organization" as defined in section 301(3) of the act of July

23, 1970 (P.L.563, No.195), known as the Public Employe

Relations Act.

"Board."  The Public Employees Occupational Safety and Health

Review Board established in section 312.

"Committee."  A work environment committee.

"Department."  The Department of Labor and Industry of the

Commonwealth.

"Harmful agent."  A substance or condition determined by the

department to present a risk to worker health or safety or to

present imminent danger of death or serious physical harm to a

public employee. The term includes, but is not limited to,

radiation (whether ionizing or nonionizing), heat, cold, noise,

vibration, repetitive motion, hypobaric pressure, hyperbaric

pressure, poor illumination, poor ergonomic design, dust, fumes,

biological hazards such as molds and allergens, inadequate

ventilation and indoor air pollution. The department shall

consult the scientific literature and rely on epidemiologic and

case study reports brought to its attention in making such

determinations for agents which are not generally recognized as

harmful agents.

"Hazardous substance."  Any chemical or mixture defined as

hazardous under section 3 of the act of October 5, 1984

(P.L.734, No.159), known as the Worker and Community Right-to-

Know Act, and any other substance determined to be hazardous by

the secretary. The secretary shall consult the scientific

literature and rely on epidemiologic and case study reports

brought to its attention in making such determinations for

substances not defined as hazardous under the Worker and

Community Right-to-Know Act.

"Imminent danger."  A hazard or condition which could

reasonably be expected to cause death or serious physical harm

immediately or before the imminence of the danger can be

eliminated through the enforcement procedure under section 501.

"Infectious agent."  Includes bacteria, viruses, fungi,

parasites, rickettsia and protozoa determined by the board or

the secretary to cause substantial acute or chronic illness or

permanent disability as a direct or indirect result of exposure

to the infectious agent by employees whose workplaces include,

but are not limited to, hospitals; morgues; laboratories;

clinics; prisons; homes or institutions for the aged and the

mentally, physically or psychologically impaired; schools; day-

care facilities; shelters, zoos or other animal-handling

operations; water and waste treatment plants; and those public

health and social service employees who may be exposed to

infectious agents in the course of home or office visits. The

department shall consult the scientific literature and rely on

epidemiologic and case study reports brought to its attention in

making such determinations for agents which are not generally

recognized as infectious agents.

"Interested person."  Includes any affected person; a

representative of an organization of employers or employees; a

nationally recognized standards-producing organization; a State

board, commission or department; a professional organization

concerned with occupational safety or health; a representative

or a public interest organization; or a member of a department

or college or university engaged in research related to

occupational safety or health.

"Occupational safety and health specialist."  An individual

who, because of professional or technical education, training or

experience, understands the health and safety risks and the

necessary precautions associated with the hazardous substances,

harmful agents, infectious agents and safety hazards which the

person is hired to address and to which public employees are

exposed. The department shall promulgate regulations specifying

criteria for education, training and experience.

"OSHA."  The Occupational Safety and Health Administration.

"OSHA Act."  The Occupational Safety and Health Act of 1970

(Public Law 91-596, 29 U.S.C. § 651 et seq.).

"Public employee."  An individual who engages to furnish his

services subject to the direction and control of a public

employer.

"Public employer."  The Commonwealth and its political

subdivisions, including school districts, and any office, board,

commission, authority, agency or instrumentality thereof; any

multistate authority; any regional transportation authority; or

anyone contracting to perform services for the Commonwealth or

any political subdivision or instrumentality thereof whose

employees are not protected by the OSHA Act.

"Recognized hazard."  Any hazardous substance, harmful agent,

infectious agent or safety hazard as defined in this act.

"Right-to-Know Act."  The act of October 5, 1984 (P.L.734,

No.159), known as the Worker and Community Right-to-Know Act.

"Safety hazard."  A hazard that arises out of or is

encountered in the course of employment and presents a risk to

employee safety.

"Secretary."  The Secretary of Labor and Industry of the

Commonwealth.

"Work environment inspector."  An occupational safety and

health specialist hired for the purpose of enforcing the

provisions of this act.

"Workplace."  A building site, structure, mobile vehicle or

other premises or location, whether indoors or outdoors, in

which an employee is engaged in work.

CHAPTER 3

PUBLIC EMPLOYEE HEALTH AND SAFETY

Section 301.  Application of health and safety standards.

(a)  Application.--This act applies to all public employers,

public employees and places of public employment in this

Commonwealth. This act and the regulations promulgated under it

do not apply to employers whose operations are covered by OSHA

or to employees of the Federal Government.

(b)  Workers' compensation.--Nothing in this act shall be

construed to supersede or affect any workers' compensation

statute or to enlarge, diminish or affect common law or

statutory rights, duties or liabilities or employers or

employees with respect to injuries, disease or death of

employees arising out of and in the course of employment.

Section 302.  Duties of public employers.

(a)  Duties.--A public employer shall do all of the

following:

(1)  Furnish, to each of its public employees, employment

and a workplace which are free from recognized hazards that

cause or may cause death, serious physical harm or illness to

employees.

(2)  Comply with the safety and health standards

promulgated under this act. These requirements shall be

included in all leases of the employer and in all contracts

with individuals and contractors who provide services to the

employer.

(3)  Assist the work environment inspector in the

performance of the inspector's duties by supplying or making

available information dealing with exposure reports, general

safety and health records and other records required by this

act which are necessary to comply with the purposes and goals

of this act.

(4)  Provide information to employees, their authorized

representatives and committee members in the following ways:

(i)  Posting information regarding protections and

obligations of employees under occupational safety and

health laws at areas in the workplace that are easily

accessible to all employees.

(ii)  Posting prominently each citation issued under

this act, or a copy or copies thereof, at or near each

place a violation referred to in the notice of violation

occurred and at areas in the workplace that are easily

accessible to all employees.

(iii)  Providing timely access to all industrial

hygiene information and other surveys and reports.

Whenever a work environment inspector or any other

representative of the employer is engaged in activities

related to the monitoring, measuring and other means of

assessment conducted to assess employee exposure to

hazards, the inspector or employer representative shall

be accompanied by employee representatives and committee

members as provided in section 307(h).

(iv)  Allowing access by employees and their

representatives to accurate records of employee exposures

to hazardous substances, infectious agents, harmful

agents or safety hazards.

(v)  Notifying any employee who has been or is being

exposed to hazardous materials, harmful agents or

infectious agents, and informing any employee so exposed

of corrective action being taken.

(vi)  Allowing access by employees and their

representatives to relevant medical records and posting a

summary of relevant medical data in a timely manner.

(5)  Consulting and working cooperatively with the

committees at the workplace for the purpose of resolving

concerns on matters of health, safety and welfare at the

workplace. Every public employer shall be responsible for

providing the committee with any information the employer

receives pursuant to section 5 of the Right-to-Know-Act, and

also for furnishing any information requested by the

committee under rights guaranteed in this act.

(6)  Providing education and training for employees

exposed to hazardous substances, harmful agents, infectious

agents and safety hazards with respect to the hazardous

substances, harmful agents, infectious agents and safety

hazards found in their workplace, pursuant to regulations

promulgated by the secretary. Employees shall receive normal

wages and benefits from the employer while attending such

programs. Additional instruction shall be provided whenever

the potential for exposure to hazardous substances, harmful

agents, infectious agents or safety hazards is altered or

whenever new information is received by the employer

concerning the hazards of the substances, agents or safety

hazards.

(b)  Prohibitions.--A public employer shall not:

(1)  Occupy, maintain or permit a public employee to be

in a workplace that is not free from recognized hazards that

cause or may cause death, serious physical harm or illness to

employees.

(2)  Interfere with an inspection by a work environment

inspector.

Section 303.  Powers and duties of department.

(a)  Purpose.--The department is charged with the

responsibility of promulgating and enforcing health and safety

rules, regulations and standards to protect the health and

safety of workers covered by this act.

(b)  Powers and duties enumerated.--The powers and duties of

the department in relation to this act include, but are not

limited to, the following:

(1)  Taking such action as necessary to enforce this act

in a prompt and effective manner, including, but not limited

to, the hiring of personnel.

(2)  Within one year, proposing such rules and

regulations as necessary to administer and enforce all

sections of this act. Substantive regulations governing

exposure levels and work conditions shall be at least as

effective as OSHA standards addressing the same issues.

(3)  Adopting all standards promulgated by OSHA which are

in effect on the effective date of this act and adopting all

standards adopted by OSHA in the future. Interested persons

may petition the department to adopt additional regulations

under this paragraph.

(4)  Either alone or in conjunction with the State

Workers' Insurance Board or the Department of Health,

preparing and maintaining morbidity and accident statistics

relating to public employees.

(5)  Providing assistance to persons concerned with

occupational health and safety and providing services to

assist committees, employers and employees in maintaining

standards for the protection of the health and safety of

public employees.

(6)  Promoting or conducting studies and research

projects in connection with problems relating to the health

and safety of public employees.

(7)  Conducting educational programs, including seminars

and courses of training for promoting the health and safety

of public employees and for improving the qualifications of

persons involved in the promotion of occupational health and

safety.

(8)  Appointing advisory committees to assist in the

administration of this act.

(9)  Making grants for any of the purposes mentioned in

this section.

(10)  Promulgating a plan for the development and

enforcement of occupational safety and health standards with

respect to public employers and employees.

(11)  Adopting health and safety standards and

promulgating rules and regulations for hazardous substances,

harmful agents, infectious agents and safety hazards, which

shall include, but not be limited to, standards and

regulations which have been enacted or proposed by OSHA or

other Federal governmental agencies. Interested persons may

petition the secretary to adopt standards and promulgate

regulations under this paragraph.

(12)  In the event of an emergency or unusual situation,

providing for an emergency temporary standard to take

immediate effect upon publication in newspapers of general

circulation in Philadelphia, Pittsburgh, Harrisburg, Wilkes-

Barre, Scranton and Erie, in accordance with 1 Pa. Code §

13.74 (relating to effectiveness prior to publication), if

the department deems that:

(i)  Employees are exposed to grave danger from

exposure to substances or agents determined to be toxic

or physically harmful or from new hazards.

(ii)  Such emergency standards are necessary to

protect employees from such danger.

Such emergency standards shall be in effect no longer than

120 days, or, if renewed in compliance with this section, not

longer than 60 additional days. On or before the expiration

date of the emergency standards or renewal thereof, the

department shall promulgate regulations to replace the

emergency temporary regulations.

(13)  In accordance with 1 Pa. Code Ch. 7 (relating to

procedure for adoption or change of regulations),

promulgating such rules and regulations as may be deemed

necessary to carry out the purposes and responsibilities to

enforce the provisions of this act.

(14)  Engaging in inspections and investigations and

taking necessary action to ensure compliance by public

employers with the provisions of this act and rules,

regulations and standards established by the secretary.

(15)  Employing assistants, experts, inspectors, hearing

officers, consultants, occupational safety and health

specialists, and other employees sufficient to carry out the

purposes of this act.

(16)  Collecting, maintaining and making available the

following statistics for each public employer:

(i)  The number of inspections requested.

(ii)  The number of inspections completed.

(iii)  The number of citations issued and the number

of violations involved.

(iv)  The number and amount of penalties assessed.

(17)  Promulgating regulations which provide for the

elimination of all asbestos brakes and clutch facings in all

vehicles owned, leased or otherwise used by the Commonwealth

and its political subdivisions in accordance with 40 CFR 763

(relating to asbestos).

(18)  Promulgating regulations providing timely access to

all industrial hygiene and other surveys and reports. Public

employers shall provide the opportunity for employees and

their representatives to walk around with work environment

inspectors and all representatives of the employer engaged in

activities related to the monitoring, measuring and other

means of assessment in order to observe monitoring, measuring

and other means of assessment conducted to assess employee

exposure to hazards pursuant to standards promulgated under

this act.

(19)  Promulgating regulations or standards requiring

proper work procedures, employee training and provision of

any necessary vaccinations or inoculations at employer

expense for any employee regularly exposed to infectious

diseases in the course of his employment.

(20)  Promulgating advisory recommendations for the

establishment of safe numbers of firefighters assigned to

each firefighting rig or apparatus to insure the public

safety and protect the health and lives of the employees

performing those services. The secretary shall appoint a

five-member Firefighters Safety Advisory Committee comprised

of members knowledgeable in fire safety, including two

members from affected bargaining units who have been

designated by the relevant employee representative, for the

purpose of developing such advisory recommendations which

will insure the safety of firefighting personnel covered by

this act. Before making its advisory recommendations, the

committee shall consider such factors as community size,

population and building patterns. The committee shall make

its advisory recommendations and deliver its final report not

later than one year after the effective date of this act.

Section 304.  Advisory committee.

(a)  Purpose.--The Public Employee Safety and Health Advisory

Committee shall be established to provide advice and assistance

to the department in fulfilling its responsibilities to

administer and enforce this act.

(b)  Duties enumerated.--The advisory committee shall:

(1)  Recommend standards, rules and regulations for

promulgation by the secretary.

(2)  Review all standards, rules and regulations proposed

by the secretary pursuant to section 303.

(3)  Review records kept by the secretary in accordance

with section 303.

(4)  Take up such other matters as it deems appropriate.

(c)  Membership.--The advisory committee shall consist of 20

members appointed by the Governor for a term of four years each.

One member shall be appointed from each of the following

categories: fire service, fire service employees,

municipalities, municipal employees, county governments, county

government employees, State government, State government

employees, correctional institutions, correctional institution

employees, local school boards, local school board employees,

law enforcement, law enforcement employees, State hospitals and

State hospital employees. Four members shall represent the

public. The advisory committee shall select a chairperson from

its own members, who shall serve a two-year term. Members shall

be selected on the basis of their experience and competence in

the field of occupational safety and health. In appointing

employee members of the advisory committee, the Governor shall

select these members from a list of candidates submitted by the

relevant collective bargaining agent.

(d)  Meetings.--The advisory committee shall meet at least

every two months.

(e)  Compensation and expenses.--The members of the advisory

committee shall serve without compensation but shall be entitled

to reimbursement for reasonable and necessary expenses, in

accordance with the rules of the Executive Board.

Section 305.  Work environment inspectors.

(a)  Appointment.--The department shall appoint work

environment inspectors to ensure that the provisions of this act

are adequately enforced. Hiring and employment of inspectors

shall be accomplished and conducted in accordance with the

applicable provisions of the act of August 5, 1941 (P.L.752,

No.286), known as the Civil Service Act.

(b)  Duties.--Under the direction of the department, the

duties of inspectors shall include, but not be limited to, the

following:

(1)  At any time, with or without prior notification, to

enter and inspect any premises or workplace and take any

samples and photographs and make any examinations the

inspector considers necessary to accomplish the purposes and

goals of this act. In the event that entry is denied, the

inspector shall notify the department, which may compel such

entry through the appropriate legal process. The department

may secure an order compelling entry by petitioning the

Commonwealth Court to grant such petition upon a showing that

entry has been denied.

(2)  To require the employer to produce, for inspection

by the work environment inspector, books, records, documents

or any other material maintained by the employer, to assist

the inspector in making determinations and in enforcing this

act.

(3)  To conduct private interviews with, or solicit

statements from, employees.

(4)  To perform all other duties as authorized by the

secretary.

(c)  Cooperation.--Work environment inspectors shall

cooperate with the work environment committees.

Section 306.  Work environment committees.

(a)  Purpose and establishment.--To best assure that the

health and safety of the public employees of this Commonwealth

are protected, work environment committees, consisting of

representatives of employees and employers, shall be established

under this section. Nothing in this section shall diminish the

employer's responsibility to assure a safe and healthful work

environment.

(b)  Formation.--An employer, except as provided in

subsection (c), shall cause a work environment committee to be

established:

(1)  at a workplace where at least 50 or more employees

are regularly employed; and

(2)  at an individual workplace or at classes of

workplaces which the department may designate.

(c)  Exemption.--Public employers employing more than 400

employees who are covered by this act and who are employed at

more than 15 workplaces maintained by the employer may apply to

the department for a modification from the requirements of

subsections (a) and (b). It shall be the employer's

responsibility to submit to the department for approval an

alternative plan for the formation of work environment

committees, which plan shall otherwise conform to the intent of

this section. In considering the alternative plan of an

employer, the department shall solicit and consider evaluations

of the plan from the authorized employee representative.

(d)  Small units.--Public employers who employ fewer than 50

employees, regardless of the number of workplaces maintained by

the employer, shall designate one employee-selected member and

one employer-selected member as work environment

representatives. The work environment representative designated

by the employees shall represent employees of the employer

employed at all workplaces.

(e)  Membership.--

(1)  A work environment committee shall consist of not

less than four nor more than 12 persons as follows:

(i)  For 25 through 100 employees - 4 members.

(ii)  For 101 through 400 employees - 6 members.

(iii)  For each 100 employees beyond 400 - 2

additional members. Additional members under this

subparagraph may not exceed 12.

(2)  Membership shall be equally divided between

employee-selected members and employer-selected members.

(3)  Public employee members of work environment

committees shall be appointed by the employee organizations

for the employees at the workplace. If there is more than one

bargaining agent, employee members shall be selected from the

three largest bargaining agents in accordance with

regulations promulgated by the department. If there is no

employee organization, the public employees shall directly

elect the members of the committee.

(4)  The employer shall post prominently in the workplace

the names of all committee members.

(5)  The number of members of a work environment

committee may be altered by agreement between an employer and

the certified collective bargaining representative of the

employer's employees. However, in no event shall there be

less than one employee-selected member and one employer-

selected member. The provisions of paragraphs (2), (3) and

(4) shall apply with regard to the size and selection of

committees.

(f)  Powers and duties.--The powers and duties of work

environment committees shall include, but not be limited to, the

following:

(1)  Regularly inspecting the workplace to identify

hazardous conditions and to check for compliance with the

general intent of this act and the standards and regulations

promulgated hereunder.

(2)  Receiving, considering and disposing of concerns and

complaints respecting the safety and health of the employees.

(3)  Maintaining records in connection with the receipt

and disposition of concerns and complaints and other

committee activities.

(4)  Investigating imminent danger situations, accidents

and unusual environmental conditions.

(5)  When it determines that an imminent danger exists,

ordering the dangerous activity to cease and requesting the

immediate presence of a work environment inspector. Once

activity has ceased, it may not resume until the work

environment inspector deems it safe. An affected party may

appeal the determination of the work environment inspector to

the board. In the event the committee is unavailable, both of

the cochairpersons of the committee may take joint action

under this paragraph.

(6)  Reviewing health and safety records to monitor

incidents of accidents and illnesses and to identify problem

areas.

(7)  Developing and promoting measures to protect the

safety, health and welfare of individuals in the workplace

and checking the effectiveness of those measures.

(8)  Cooperating with a work environment inspector

exercising duties under this act.

(9)  Developing and promoting programs for education and

information concerning safety and health in the workplace.

(10)  Suffering no loss in pay, benefits or accrual of

seniority for time spent on committee business.

(11)  Receiving from the public employer, at least 60

days in advance of implementation, notice concerning a change

in workplace technology or process or an introduction into

the workplace of a hazardous substance, harmful agent,

infectious agent or safety hazard which has not previously

been recognized by the work environment committee for that

workplace.

(12)  Developing medical testing for work-related

illnesses or disabilities which may arise out of or in the

course of employment, including illnesses or disabilities

resulting from or contributed to by exposure to hazardous

substances, harmful agents, infectious agents or safety

hazards. The department shall promulgate regulations

necessary to protect the confidentiality of employees.

(g)  Meetings.--

(1)  Committees shall hold regular meetings at least

quarterly or as needed as determined by the cochairpersons.

The meetings of a committee shall be held during ordinary

working hours unless otherwise agreed upon. Additional

meetings shall be held as necessary.

(2)  There shall be two committee cochairpersons, one

selected by employee members of the committee and one

selected by employer members of the committee.

(3)  Decisions shall be made by a majority of committee

members present and voting. In case of a deadlock, a work

environment inspector shall be called in to resolve the

issue.

(4)  Minutes of all meetings shall be taken, and the

approval of each cochairperson shall be indicated by

signature.

(5)  A copy of the minutes shall be posted prominently in

the workplace.

(6)  Members of committees shall suffer no loss in wages,

benefits or seniority for time spent on committee business.

(h)  Training.--Every committee member shall be entitled to

not less than 16 hours of occupational health and safety

training in the member's first year of service, and additional

training shall be provided no less frequently than biannually in

subsequent years. Training shall be provided at employer

expense. The form, nature and location of the training shall be

approved by the committee. Participating employees shall receive

their regular rate of pay and benefits while attending such

training.

(i)  Nonliability.--The bargaining representatives and work

environment committees, and individual members of such

committees, shall not be held liable for any work-connected

injuries, disabilities or diseases which may be incurred by

employees.

(j)  Work environment representative.--

(1)  A public employer shall cause an employee to be

designated as the work environment representative:

(i)  at a workplace where a work environment

committee is not required but where five or more

employees are regularly employed; and

(ii)  at an individual workplace or classes of

workplaces which the board may designate.

(2)  The work environment representative shall be

appointed by the employee organization recognized or

certified as the employee representative (bargaining agent)

for the employees at the workplace. In the event that there

is more than one bargaining agent, the work environment

representative shall be appointed by the largest bargaining

agent. In the absence of a recognized or certified employee

representative, the employees shall elect the work

environment representative. The employer shall post

prominently in the workplace the name of the work environment

representative.

(3)  The work environment representative shall, in

cooperation with a representative of the employer, perform

the same duties and have the same powers and rights as set

out for the work environment committee in subsection (e).

(4)  A work environment representative shall be entitled

to not less than 16 hours of occupational health and safety

training in the representative's first year of service and

additional training shall be provided no less frequently than

biannually in subsequent years. Training shall be provided at

employer expense. The form, nature and location of the

training shall be acceptable to the representative who

receives it.

(5)  The work environment representative shall not be

held liable for a work-connected injury, disability or

disease which may be incurred by an employee.

Section 307.  Inspections.

(a)  Report to work environment committee.--Any employee who

believes that a violation of a safety or health standard rule or

regulation exists, or that there is a threat of harm to an

employee's health or safety, shall report such violation or

threat of harm to the work environment committee. Within three

working days of the receipt of such report, the work environment

committee shall determine whether a violation or threat of harm

exists, and upon such determination, recommend to the public

employer corrective actions which will eliminate the violation

or threat of harm. The work environment committee may also

exercise its authority under section 306 when it determines such

action is necessary. Nothing in this subsection shall preclude

the work environment committee from requesting an inspection by

the department.

(b)  Request for inspection.--Any employee who believes that

the violation or threat of harm still exists after the work

environment committee's review and action by the public employer

may request an inspection by the department by giving notice to

the department of the violation or threat of harm.

(c)  Manner of request.--Requests for inspections may be made

orally or in writing and shall set forth the grounds for the

request. The department shall, upon request of the complaining

party, keep confidential the name of the person making the

complaint.

(d)  Action on request.--Whenever the department receives a

request for inspection of an imminent danger or where the

department is aware of the likelihood of an imminent danger, an

inspection shall be made immediately. In all other cases,

inspections shall be made as soon as possible, but at least

within 72 hours, if the department determines there are

reasonable grounds to believe that a recognized hazard exists.

If the department determines there are no reasonable grounds to

believe that a recognized hazard exists, it shall notify the

employees or the representative of the employees, in writing, of

such a determination within five days of a request for an

inspection. The department shall provide, to the employee's

representative and to the committee and the employer, a copy of

the inspection report and any order or agreements made to the

individual making the complaint. Prior to or during any

inspection of a workplace, any employees or representatives of

employees employed in such workplace may notify the department

or any representative thereof responsible for conducting the

inspection, in writing, of any violation of this act which they

have reason to believe exists in such workplace. The department

shall, by regulation, establish procedures for informal review

of any refusal by its representative to perform an inspection or

issue a citation with respect to any such alleged violation and

shall furnish the employees or representative of employees

requesting such review a written statement of the reasons for

the department's final disposition of the case.

(e)  Inspection without notice.--Inspections may be made

without any notice to the employer or the employees.

(f)  Accessibility of locations.--Inspectors of the

department shall have immediate access to any location in which

there is a suspected hazard or condition for the purposes of

conducting an inspection.

(g)  Intermittent inspections.--The department shall make a

determination as to those occupations and workplaces where there

is a possibility of health or safety hazards to employees or the

public and shall conduct regular unannounced inspections of

these workplaces.

(h)  Escort of inspector.--A representative of the employer

and an authorized employee representative shall accompany the

inspector for the entire inspection whenever the inspector

conducts an inspection in accordance with this act. In addition,

the work environment committee may designate one committee

member to accompany the inspector, the representative of the

employer and the authorized employee representative on any or

all parts of the inspection which address, but are not limited

to, work areas and processes of which the committee member or

committee members have firsthand knowledge. The authorized

employee representatives and designated committee members shall

attend all opening, interim and closing conferences pertaining

to the inspection. Authorized employee representatives and

committee members shall receive full employment benefits for all

time spent on such activities.

(i)  Inspection regardless of complaint.--The authority of

the department to inspect a premises pursuant to an employee

complaint shall not be limited to the alleged violation

contained in the complaint. The department may inspect any other

areas of the premises.

(j)  Inspection of public employer's premises.--The

department may, upon its own initiative, conduct an inspection

of any premises occupied by a public employer.

(k)  Subpoena.--In making inspection and investigations under

this act, the secretary may require the attendance and testimony

of witnesses and the production of evidence under oath.

Witnesses shall be paid the same fees and mileage that are paid

witnesses in the courts of this Commonwealth. In case of

contumacy or failure or refusal of a person to obey an order, a

court of competent jurisdiction shall have jurisdiction to issue

to the person an order requiring the person to appear to produce

evidence, if asked, and, when ordered, to give testimony

relating to the matter under investigation or in question.

Failure to obey an order of the court may be punishable by the

court as a contempt.

Section 308.  Recordkeeping.

(a)  Records required.--In accordance with the department's

regulations, each public employer shall make, keep and preserve,

and make available to the department, the records regarding its

activities relating to this act as the department deems

necessary or appropriate for developing information regarding

the causes and prevention of occupational accidents and illness.

The regulations may include provisions requiring public

employers to conduct periodic inspections. The department shall

also issue regulations requiring that public employers, through

posting of notices, training or other appropriate means, keep

their employees informed of their rights to protection.

(b)  Medical problems.--The department shall require public

employers to maintain accurate records and to make public,

monthly reports and biannual summaries on a form provided by the

department of work-related deaths and injuries and illnesses,

medical treatment, loss of consciousness, assaults on employees,

restrictions of work or motion, or transfers to other jobs.

Public employers, the authorized representative of the employees

and the committee shall, upon request, have the right to examine

and copy any and all such reports.

(c)  Exposure.--The department shall issue regulations

requiring employers to maintain accurate records of employee

exposures to hazardous substances, harmful agents, infectious

agents or safety hazards. The regulations shall make appropriate

provisions for each employee or former employee to have access

to the employee's or former employee's exposure records. These

requirements shall be at least as effective as those established

in the Right-to-Know Act. A public employer shall immediately

notify any public employee who has been or is being exposed to

hazardous substances, harmful physical agents or infectious

agents. Public employees exposed to such hazards shall be

informed by the employer of the corrective action proposed and

the time limit for implementation, and shall immediately be

scheduled for participation in the medical surveillance program.

Section 309.  Adverse action against employees.

(a)  Prohibition.--No adverse action shall be taken against

any public employee:

(1)  by reason of the employee's participation in or

association with any functions of a committee;

(2)  by reason of the employee's inquiry about or

utilization of any rights or responsibilities the employee

may have under this act; or

(3)  for any other reason having to do with exercising

any rights granted under this act.

(b)  Presumption.--Where an adverse action is taken against

any employee who has, in the prior six months, in any way been

involved with the enforcement or protection of any rights

granted under this act, it shall be presumed that the action was

taken in violation of this act, and it shall be the burden of

the employer to prove that the action was not taken for improper

reasons described in subsection (a) or for reasons otherwise

contrary to the policies and provisions of this act.

(c)  Complaints.--An employee who believes that adverse

action has been taken against the employee in violation of this

act may, within 180 days after the employee becomes aware of

such action, file a complaint with the department alleging the

adverse action. Upon receipt of the complaint, the department

shall, within 30 days of receipt of such complaint, make an

investigation and shall, if requested, withhold the name of the

complainant from the employer. Whenever the department

determines that this act has been violated, it shall bring an

action in Commonwealth Court against the employer alleged to

have violated this act. In the event of a finding of adverse

action, the employer shall:

(1)  Cease the adverse action and reinstate the employee

to the employee's former employment without loss of pay,

contractual and noncontractual rights, or benefits.

(2)  Pay to the worker any wages and benefits the worker

would have earned had the worker not had adverse action taken

against him.

(3)  Remove any reprimand or other reference to the

matter from the employer's records on the employee.

Section 310.  Right to work under safe conditions.

(a)  General rule.--

(1)  A public employee may not be compelled to work at a

workplace if all of the following apply:

(i)  A reasonable individual would believe, in good

faith, that performing assigned work at the workplace

would involve a danger of death or serious injury or

illness.

(ii)  The public employee is unable to obtain

correction of the condition by the employer.

(iii)  There is insufficient time to eliminate the

danger through resort to regular statutory or contractual

enforcement procedures.

(2)  In addition, a public employee may not be compelled

to work at a workplace or to perform a specific assignment,

if the work environment committee has exercised its authority

under section 306.

(3)  If paragraph (1) or (2) applies, a public employee

may refuse to perform assigned duties in the workplace until

the work environment inspector has investigated the matter

and advised the employee in writing that a hazard no longer

exists.

(b)  Temporary assignments.--Notwithstanding any other

provision of this act, temporary assignment to alternative work

shall be at no loss of pay, benefits, or contractual or

noncontractual rights to the employee until the matter mentioned

in subsection (a) is resolved, and shall be deemed not to

constitute adverse action within the meaning of this act.

Section 311.  Asbestos abatement.

(a)  Program establishment.--The department shall establish

an asbestos abatement program as described in this section.

(b)  Duties of public employers.--Public employers shall,

within 18 months from the effective date of this act, perform

the following:

(1)  Conduct building inspections to determine the

presence of asbestos hazards in the workplace. Inspections

shall be conducted by OSHA specialists.

(2)  Maintain records of findings.

(3)  Notify the public employees, authorized employee

representatives and committees of the results of the

inspection and release to these individuals and groups the

records from the inspections. Members of the public shall

have access to the records of inspections of public

buildings.

(c)  Abatement plan.--Where asbestos exists in a facility,

the public employer shall file an asbestos abatement plan with

the department within 30 months of the effective date of this

act. This plan shall conform to the practices recommended by the

Environmental Protection Agency for abatement of asbestos.

Section 312.  Public Employee Occupational Safety and Health

Review Board.

(a)  Establishment.--There is hereby established an

administrative board within the department, to be known as the

Public Employee Occupational Safety and Health Review Board. The

board shall consist of five members appointed by the Governor

from among persons who, by reason of training, education or

experience, are qualified to carry out the functions of the

board under this section. Two of the members must be sensitive

to the interests of public employees and shall be appointed by

the Governor from among ten candidates submitted by the

President of the Pennsylvania AFL-CIO. Two of the members must

be sensitive to the interests of public employers and shall be

appointed from a list of ten candidates submitted by the

Pennsylvania Local Government Conference. The Governor shall

designate one of the members to serve as chairman of the board.

(b)  Terms.--The initial chairman, appointed by the Governor,

shall serve a term of five years. Thereafter, a chairman shall

be elected by the members for a term of four years. Two of the

initial appointees shall serve terms of two years, one of the

initial appointees shall serve a term of three years, and one of

the initial appointees shall serve a term of four years.

Appointments after initial appointments shall be for terms of

four years.

(c)  Meetings.--The board shall hold monthly meetings and

additional meetings as it deems necessary. A majority of the

board shall constitute a quorum for the transaction of business.

Special meetings of the board shall be called upon reasonable

notice by the chairman or by any two members of the board.

(d)  Hearings and regulations.--The board shall hear and rule

on appeals from citations, notifications and penalties issued

under this act. Hearings and appeals from decisions of the board

shall be as provided in 2 Pa.C.S. (relating to administrative

law and procedure).

(e)  Staff.--The board may employ a secretary, administrative

law judges and other employees as necessary.

(f)  Compensation.--

(1)  The chairman and members of the board shall be paid

a salary to be established by the Executive Board.

(2)  Except as set forth in paragraph (1), the salaries,

compensation or wages of employees of the board shall be

determined by the board.

(g)  Expenses.--The members or employees of the board shall

be reimbursed for necessary expenses incurred in the performance

of their duties.

(h)  Hearings.--

(1)  Hearings authorized by this section shall be

conducted by an administrative law judge appointed by the

board to serve in its place. The administrative law judge may

be a full-time employee, may serve by contract or may be paid

on a per diem basis, at the discretion of the board.

(2)  An administrative law judge appointed by the board

shall hear and make a determination upon proceedings

instituted before the board and upon motions in connection

with a proceeding assigned to the administrative law judge by

the chairman of the board and shall make a report of a

determination, which constitutes the administrative law

judge's final disposition of the proceedings. The report of

the administrative law judge shall become the final order of

the board within 30 days after the report is issued unless,

within that period, a board member has directed that the

report shall be reviewed by the board.

(3)  In the conduct of hearings, the board or

administrative law judge may subpoena and examine witnesses,

require the production of evidence, administer oaths and take

testimony and depositions.

(4)  After hearing an appeal, the board may sustain,

modify or dismiss a citation or penalty.

(5)  The rules or procedures prescribed by the board

shall provide affected employees or representatives of

affected employees an opportunity to participate as parties

to hearings under this subsection.

Section 313.  Variances.

(a)  Application.--A public employer may apply to the

department for a temporary order granting an exception from a

standard promulgated under this act. The temporary order may be

granted only if the employer files an application which meets

the requirements of this section and establishes that the public

employer:

(1)  Is unable to comply with a standard by its effective

date because of the unavailability of professional or

technical personnel or of materials and equipment needed to

come into compliance with the standard or because necessary

construction or alteration of facilities cannot be completed

by the effective date.

(2)  Is taking all available steps to safeguard employees

against the hazards covered by the standard.

(3)  Has an effective program for coming into compliance

with the standard as quickly as possible.

(b)  Temporary orders.--A temporary order issued under this

section shall prescribe the practices, means, methods,

operations and processes which the employer must adopt and use

while the order is in effect and state in detail compliance

requirements. The temporary order may be granted only after

notice to employees, employee representatives and the committee,

and after an opportunity for a hearing. The department may,

however, issue one interim order, to be effective until a

decision is made on the basis of the hearing. A temporary order

shall be in effect for as long as the period needed by the

employer to achieve compliance with the standard, or for one

year, whichever is shorter. An order may be renewed, not more

than twice, if the requirements of this section are met and if

an application for renewal is filed at least 90 days prior to

the expiration date of the order. An interim renewal of an order

shall remain in effect no longer than 180 days.

(c)  Contents of application for temporary order.--An

application for a temporary order shall contain all of the

following:

(1)  A specification of the standard, or portion thereof,

from which the employer or owner seeks a variance.

(2)  A representation by the employer, supported by

representations from qualified persons who have firsthand

knowledge of the facts represented, that the employer is

unable to comply with the standard, or portion thereof, and a

detailed statement of the reasons therefor.

(3)  A statement of the steps the employer has taken and

will take, with dates specified, to protect employees against

the hazard covered by the standard.

(4)  A statement of when the employer expects to be able

to comply with the standard and what steps the employer has

taken and will take, with dates specified, to come into

compliance with the standard.

(5)  A certification that the employer has informed its

employees of the application:

(i)  by giving a copy of the application to their

authorized representative and to the committee;

(ii)  by posting a statement giving a summary of the

application and specifying where a copy may be examined

at the place or places where notices to employees are

normally posted; and

(iii)  by other appropriate means.

A description of how employees have been informed shall be

contained in the certification. The information to employees

shall also inform them of their right to petition the board

for a hearing.

(d)  Variance rule.--Affected public employees shall be given

notice of each application for a variance and an opportunity to

participate in a hearing. The department shall issue an order if

it determines, on the record, after opportunity for an

inspection, where appropriate, and a hearing, that the proponent

of the variance has demonstrated by a preponderance of the

evidence that the conditions, practices, means, methods,

operations or processes used or proposed to be used by an

employer will provide employment and workplaces which are as

safe and healthful as those which would prevail if he complied

with the standard. The order shall prescribe the conditions the

employer must maintain and the practices, means, methods,

operations and processes which the employer must adopt and

utilize to the extent they differ from the standard in question.

At any time after six months from its issuance and in the manner

prescribed for its issuance under this section, an order may be

modified or revoked upon application by an employer, any

employee or employee representative, or by the board on its own

motion.

(e)  Limitation of action.--A person who may be adversely

affected by an order issued under this act may challenge the

validity or applicability of the order within 120 days from the

date of issuance, as provided in section 310.

CHAPTER 5

ENFORCEMENT

Section 501.  Enforcement orders.

If a work environment inspector determines that an employer

has violated this act, or a health or safety standard or

regulation promulgated under this act, the department shall,

within seven days, issue to the employer a citation, which shall

describe particularly the nature of the violation, including a

reference to the provision of this act or the standard,

regulation or order alleged to have been violated, and any

corrective action required. The department shall fix a

reasonable time for compliance, not to exceed 72 hours, unless

the employer can demonstrate to the board that the violation

cannot be remedied within that time.

Section 502.  Imminent danger.

If a work environment inspector concludes that an activity

being carried on or scheduled to commence involves or will

involve a risk of serious personal injury or harm and that the

risk of such injury or harm is imminent, the inspector shall

require that the work cease. The inspector may stop work-related

and non-work-related activities in the vicinity of the imminent

danger if such action is needed to protect the health and safety

of other persons. If, upon inspection, the work environment

inspector finds an imminent danger to exist, the inspector shall

order the immediate abatement of the dangerous situation. Before

the employer may recommence the activity, the inspector must

certify that the employer has come into compliance with this

act.

Section 503.  Citations.

(a)  Posting of citation.--Whenever the department issues a

citation to an employer, the employer shall post the citation or

a copy of the citation in a conspicuous place, at or near each

place of violation cited in the citation, where it is clearly

visible to the affected employees. The department shall furnish

copies of such citation to employee representatives and to the

committee.

(b)  Notice of citation.--If, after inspection or

investigation, the department issues a citation, it shall,

within a reasonable time after the termination of the inspection

or investigation, notify the employer by certified mail of the

penalty, if any, proposed to be assessed under section 509.

Notification shall inform the employer that it has 15 working

days from the receipt of notice within which to notify the

department that it wishes to contest the citation or proposed

assessment of penalty. If the employer fails to notify the

department within 15 days and if no notice is filed by an

employee or representative of employees under subsection (a)

within 15 days, the citation and assessment, as proposed, shall

be deemed a final order of the board and not subject to review

by a court or agency.

Section 504.  Notice of penalty.

If the department has reason to believe that an employer has

failed to correct the violation for which a citation has been

issued within the period permitted for correction, it shall

notify the employer by certified mail of the failure and of the

penalty proposed to be assessed under section 509 because of

such failure. In the case of a review proceeding initiated by

the employer under this chapter in good faith and not solely for

delay or the avoidance of penalties, the period permitted for

correction of the violation shall not begin to run until the

entry of a final order by the board. Notification by the

department shall inform the employer that it has 15 working days

from receipt of notice within which to notify the department

that it wishes to contest the notification or the proposed

assessment of the penalty. If, within 15 days from receipt of

notification under this section, the employer fails to notify

the department that it intends to contest the notification or

proposed assessment of penalty, the notification and assessment

as proposed shall be deemed a final order of the board and not

subject to review by court or agency.

Section 505.  Proceedings by department.

If the time for compliance with an order or citation of the

board has elapsed and the employer has not complied with the

order or citation, the department shall commence a proceeding in

Commonwealth Court to enforce the order and shall levy

additional fines and penalties under section 509.

Section 506.  Injunctive relief.

Commonwealth Court may, upon petition of the department or

any affected party, restrain any conditions or practices in any

place of public employment which could be expected to cause

death or physical harm. An order issued under this section may

require such steps to be taken as may be necessary to avoid,

correct or remove an imminent danger and to prohibit the

employment or presence of an individual in locations or under

conditions where an imminent danger exists, except individuals

whose presence is necessary to avoid, correct or remove the

imminent danger or to maintain the capacity of a continuous

process operation to resume normal operations without a complete

cessation of operations, or, where a cessation of operations is

necessary, to permit it to be accomplished in a safe and orderly

manner.

Section 507.  Failure of secretary to act.

Whenever the department fails to seek relief under this

chapter within five days of being notified of such condition,

any employee who may be injured by reason of the failure, or the

authorized employee representative of such employee or the

committee, may seek injunctive relief, as provided in this

section, or any other appropriate remedies. In the event that

such an action is successful, the employer shall pay the costs

and legal fees of the petitioning parties.

Section 508.  Follow-up inspection.

If, at the time of or after inspection or investigation, the

department issues a citation for a violation, the department

shall conduct a reinspection at the end of the period fixed for

abatement of the violation. A public employer shall not be given

advance warning of a reinspection by the department.

Section 509.  Penalties.

(a)  Civil penalties.--The department may assess the

penalties set forth in this subsection, giving due consideration

to the appropriateness of the penalty with respect to the size

of the employer being charged, the gravity of the violation, the

good faith of the employer and the history of previous

violations. Penalties collected shall be deposited in a fund

maintained, administered and distributed by the board for

programs approved under this act. Penalties are as follows:

(1)  Except as provided in paragraphs (3) and (4), an

employer who has received a citation for a violation of

section 302 or of a standard, rule, regulation or order

promulgated or issued under this act may be assessed a civil

penalty of not more than $1,000 for each violation.

(2)  In addition to the penalties provided in paragraphs

(3) and (4):

(i)  An employer who willfully or repeatedly violates

section 302 or a standard, rule, regulation or order

promulgated or issued under this act may be assessed a

civil penalty of not more than $10,000 for each

violation.

(ii)  An employer who fails to correct a violation

for which a citation has been issued within the period

permitted for its correction may be assessed a civil

penalty of not more than $1,000 for each day during which

the violation continues.

(3)  An employer who has received a citation for a

serious violation of section 302 or a standard, rule,

regulation or order promulgated or issued under this act

shall be assessed a civil penalty of not more than $1,000 for

each violation. For purposes of this paragraph, a serious

violation shall be deemed to exist in a workplace if there is

a substantial probability that death or serious physical harm

could result from a condition which exists, or from one or

more practices, means, methods, operations or processes which

have been adopted or are in use in the workplace, unless the

employer did not and could not, with the exercise of

reasonable diligence, know of the presence of the violation.

(4)  An employer who violates posting requirements

prescribed or established under this act shall be assessed a

civil penalty of not more than $1,000 for each violation.

(b)  Criminal penalties.--Criminal penalties are as follows:

(1)  If an employer intentionally violates this act or a

standard, rule, regulation or order promulgated or issued

under this act and if the violation causes the death of an

employee, the employer commits a misdemeanor of the third

degree and shall:

(i)  Upon conviction for the first offense, be

sentenced to pay a fine of not more than $10,000 or to

imprisonment for not more than six months, or both.

(ii)  Upon conviction for a subsequent offense, be

sentenced to pay a fine of not more than $20,000 or to

imprisonment for not more than one year, or both.

(2)  A person who, without authority from the executive

director or a designee, gives advance notice of an inspection

to be conducted under this act commits a misdemeanor of the

third degree and shall, upon conviction, be sentenced to pay

a fine of $1,000 or to imprisonment for not more than six