Amendment 5199 to House Bill 2412 P.N. 3570, Regular Session 2019-2020

H2412B3570A05199 MSP:JSL 04/21/20 #90 A05199

AMENDMENTS TO HOUSE BILL NO. 2412

Sponsor: REPRESENTATIVE HARKINS

Printer's No. 3570

Amend Bill, page 1, line 21, by inserting after "provisions"

and for public employees occupational safety and health

Amend Bill, page 1, lines 25 and 26, by striking out "an

article" and inserting

articles

Amend Bill, page 2, line 13, by inserting after "sale"

or rent

Amend Bill, page 2, line 15, by inserting after "estate"

or entering into a rental agreement

Amend Bill, page 3, by inserting between lines 19 and 20

(a.1) Mitigation measures.--Waivers under subsection (a)

shall only be issued to business activities that can adhere to

applicable mitigation measures defined by the Centers for

Disease Control, Occupational Health and Safety Administration

and the Department of Health to protect workers from and

mitigate the spread of COVID-19. A business receiving a waiver

under subsection (a) shall implement the applicable mitigation

measures.

Amend Bill, page 4, line 8, by striking out all of said line

and inserting

ARTICLE XXII-C

PUBLIC EMPLOYEES OCCUPATIONAL SAFETY AND HEALTH

Section 2201-C. Scope of article.

This article relates to public employees occupational safety

and health.

Section 2202-C. Legislative declaration.

The General Assembly hereby declares as follows:

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

environment that is free from hazards and risks to their

safety. It is the intent of the General Assembly to ensure

that this right is also afforded to employees of the

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Commonwealth, its counties, cities, towns, boroughs and other

public employers who serve the people of this Commonwealth.

(2) A significant percentage of all of those employed 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 who are protected by the

Occupational Safety and Health Act of 1970. The General

Assembly, therefore, finds it inappropriate to continue two

standards for employee safety, one applicable to those who

work in the private sector and one for those who are employed

by a public employer.

(3) The General Assembly has further determined that 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. In addition, unsafe

premises increase the risk of financial liability for

injuries to members of the public who frequent public

buildings.

(4) The General Assembly, in an exercise of the

Commonwealth's police power, charges the secretary with the

responsibility to ensure that all public employees are

afforded the same safeguards in their workplace as are

granted to employees in the private sector.

Section 2203-C. Definitions.

The following words and phrases when used in this article

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

" Authorized employee representative. " An employee authorized

by employees or the designated representative of an employee

organization recognized or certified to represent the employees.

" Employee organization. " An organization of any kind, or any

agency or employee representation committee or plan in which

membership includes public employees, and which exists for the

purpose, in whole or in part, of dealing with employers

concerning grievances, employee-employer disputes, wages, rates

of pay, hours of employment or conditions of work. The term does

not include an organization that practices discrimination in

membership because of race, color, creed, national origin or

political affiliation.

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

Occupational Safety and Health Act of 1970 (Public Law 91-596,

29 U.S.C. § 651 et seq.).

" Occupational safety and health standard. " A standard that

requires conditions, or the adoption or use of one or more

practices, means, methods, operations or processes, reasonably

necessary or appropriate to provide safe or healthful employment

in places of employment.

" Person. " An individual, partnership, association,

corporation, business trust, legal representative or an

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organized group of any of them.

" Public employee " or " employee. " An individual employed by a

public employer.

" Public employer " or " employer. " The Commonwealth, any of

its political subdivisions, including a school district and any

office, board, commission, agency, authority, local

transportation organization or other instrumentality thereof and

any nonprofit organization or institution and any charitable,

religious, scientific, literary, recreational, health,

educational or welfare institution receiving grants or

appropriations from Federal, State or local government. The term

does not include an employer covered or presently subject to

coverage under the Occupational Safety and Health Act of 1970.

" Review board. " The Pennsylvania Occupational Safety and

Health Review Board established under this article.

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

Commonwealth or a designated agent.

Section 2204-C. Application.

(a) General rule.--Any occupational safety or health

standards promulgated under the provisions of this article shall

apply to all public employers and public employees, and the

secretary shall have authority to enforce the standards in

accordance with the provisions of this article.

(b) Statutory and common law rights preserved.--Nothing in

this article may be construed to supersede or in any manner

affect any workers' compensation law or to enlarge, diminish or

affect in any manner common law or statutory rights, duties or

liabilities of employers or employees under any law with respect

to injuries, diseases or death of employees arising out of and

in the course of employment.

Notwithstanding any other provision in this article, an

occupational safety or health standard promulgated under this

article shall apply only to employees not covered by a Federal

occupational safety or health standard promulgated under section

6 of the Occupational Safety and Health Act of 1970 or

amendments thereto.

Section 2205-C. Employer duties.

(a) General rule.--An employer shall furnish to each of its

employees employment and a place of employment free from

recognized hazards that are causing or are likely to cause death

or serious physical harm and which will provide reasonable and

adequate protection to the lives, safety or health of its

employees.

(b) Compliance with article.--An employer shall comply with

the occupational safety and health standards promulgated under

this article.

upon the written request of an employee, furnish the employee

with a written statement listing the substances that the

employee uses or with which the employee comes into contact that

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have been identified as toxic or hazardous by occupational

safety and health standards under 29 CFR Pt. 1910 Subpt. H

(relating to hazardous materials) or pursuant to the act of

February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law,

or both.

(d) Law compliance with regulations and orders.--An employee

and employer shall comply with occupational safety and health

standards and all rules, regulations and orders issued pursuant

to this article that are applicable to their own actions and

conduct.

(e) State plan for standards.--The Commonwealth shall

promulgate a plan for the development and enforcement of

occupational safety and health standards with respect only to

public employers and employees, in accordance with section 18(b)

of the Occupational Safety and Health Act of 1970.

Section 2206-C. Regulations.

The secretary may promulgate regulations to administer and

enforce this article and shall:

(1) Provide for the preparation, adoption, amendment or

repeal of regulations governing the conditions of employment

of general and special application in all workplaces.

(2) Provide a method of encouraging employers and

employees in their efforts to reduce the number of safety and

health hazards arising from undesirable or inappropriate

working conditions at the workplace, and of stimulating

employers and employees to institute new programs and to

perfect existing programs for providing safe and healthful

working conditions.

(3) Provide for appropriate reporting procedures by

employers with respect to information relating to conditions

of employment that will assist in achieving the objectives of

this article.

(4) Provide for the frequency, method and manner of

making inspections of workplaces without advance notice,

provided that in the event of an emergency or unusual

situation, the secretary may give advance notice.

(5) Provide for the publication and dissemination to

employers, employees and labor organizations and the posting,

where appropriate, by employers of informational, educational

or training materials designed to aid and assist in achieving

the objectives of this article.

(6) Provide for the establishment of new programs and

the perfection and expansion of existing programs for

occupational safety and health education for employers and

employees and institute methods and procedures for the

establishment of a program for voluntary compliance by

employers and employees with the requirements of this article

and all applicable occupational safety and health standards

and regulations promulgated under this article.

Section 2207-C. Standards.

(a) General rule.--The secretary shall, by regulation, adopt

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all occupational safety and health standards, amendments or

changes adopted or recognized by the United States Secretary of

Labor under the authority of the Occupational Safety and Health

Act of 1970 in order to provide reasonable and adequate

protection of the lives, safety and health of public employees.

Subject to subsection (b), the secretary shall promulgate and

repeal such regulations as may be necessary to conform to the

standards established pursuant to the Occupational Safety and

Health Act of 1970. Where no Federal standards are applicable,

the secretary shall provide for the development of such State

standards as may be necessary in special circumstances.

(b) Interstate commerce.--The secretary may not adopt

standards for products distributed or used in interstate

commerce that are different from Federal standards for the

products unless the standards are required by compelling local

conditions and do not unduly burden interstate commerce.

be adversely affected by a standard or regulation issued under

this article may challenge the validity or application of the

standard or regulation by bringing an action for declaratory

judgment.

Section 2208-C. Variances.

(a) Variance procedure.--

(1) A public employer may apply to the secretary for a

temporary order granting a variance from a standard or any

provision of a standard promulgated under this article. A

temporary order shall be granted only if the employer files

an application that meets the requirements of subsection (b)

and establishes all of the following:

(i) The employer is unable to comply with a standard

by its effective date because of 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.

(ii) The employer is taking all available steps to

safeguard employees against the hazards covered by the

standard.

(iii) The employer has an effective program for

coming into compliance with the standard as quickly as

practicable.

(2) (i) A temporary order issued under this section

shall prescribe the practices, means, methods, operations

and processes that the employer must adopt and use while

the order is in effect and state in detail the employer's

program for coming into compliance with the standard.

(ii) A temporary order may be granted only after

notice to employees and an opportunity for a hearing,

provided that the secretary may issue one interim order

to be effective until a decision is made on the basis of

a hearing.

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(iii) A temporary order may not be in effect for

longer than the period needed by the employer to achieve

compliance with the standard or one year, whichever is

shorter, except that an order may be renewed not more

than twice so long as the requirements of this section

are met and an application for renewal is filed at least

90 days prior to the expiration date of the order.

(iv) An interim renewal of an order shall not remain

in effect longer than 180 days.

(b) Contents of application for variance.--An application

for a temporary variance order shall contain all of the

following:

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

standard 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 of the standard

and a detailed statement of the reasons therefor.

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

will take, with specific dates, 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 by giving a copy of the

application to the authorized employee representative,

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 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 secretary for a hearing.

grant a variance from any standard or portion of the standard

whenever the secretary determines that a variance is necessary

to permit an employer to participate in an experimental program

approved by the secretary, which is designed to demonstrate or

validate new and improved techniques to safeguard the health or

safety of workers.

(d) Hearing and order.--

(1) An affected employer may apply to the secretary for

a rule or order for a variance from a standard promulgated

under this article. Affected employees shall be given notice

of each such application and an opportunity to participate in

a hearing.

(2) The secretary shall issue a rule or order if the

secretary determines on the record, after opportunity for an

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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 places of

employment that are as safe and healthful as those that would

prevail if the employer complied with the standard. The rule

or order shall prescribe the conditions the employer must

maintain and the practices, means, methods, operations and

processes that the employer must adopt and utilize to the

extent they differ from the standard in question.

(3) A rule or order may be modified or revoked upon

application by an employer, employee or authorized employee

representative, or by the secretary on the secretary's own

motion, in the manner prescribed for its issuance under this

section at any time after six months from the date it was

entered.

(e) Challenge to standard or regulation.--A person who may

be adversely affected by a standard or regulation issued under

this article may challenge the validity or applicability of the

standard or regulation by bringing an action for declaratory

judgment.

Section 2209-C. Pennsylvania Occupational Safety and Health

Review Board.

(a) Establishment.--The Pennsylvania Occupational Safety and

Health Review Board is established to have and exercise the

powers and duties provided by the provisions of this article.

The board shall consist of five persons appointed by the

Governor from among persons who, by reason of training,

education or experience, are qualified to carry out the

functions of the review board under this article.

(b) Terms of members.--Members shall serve terms of four

years and until their successors are appointed. The Governor

shall designate one of the members to serve as chairperson.

shall hear and rule on appeals from compliance orders,

notifications and penalties issued under the provisions of this

article. The secretary shall adopt and promulgate rules and

regulations with respect to the procedures for review board

hearings.

(d) Schedule for hearing appeals.--A board member hearing an

appeal or appeals under the provisions of this article shall be

paid a per diem amount to be determined by the secretary. The

members shall alternate the hearing of appeals according to a

schedule adopted by the secretary. If a member is unable to hear

an appeal, the next available member, in accordance with the

schedule, shall hear the appeal. A member shall be selected to

hear the appeal within 30 days after the date it was filed.

(e) Necessary staff.--Any staff necessary for the purposes

of conducting hearings under this article shall be provided by

the Department of Labor and Industry.

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(f) Subpoena power and oaths.--In the conduct of hearings,

the review board member may subpoena and examine witnesses,

require the production of evidence, administer oaths and take

testimony and depositions.

(g) Ruling on appeal.--After hearing an appeal, the review

board member may sustain, modify or dismiss a compliance order

or penalty, provided that decision shall be issued within 120

days after the appeal was filed.

Section 2210-C. Appeal from review board.

A person, including the secretary, adversely affected or

aggrieved by an order of the review board, after all

administrative remedies provided by this article have been

exhausted, is entitled to judicial review.

Section 2211-C. Inspection and investigation powers.

(a) Right to inspect.--

(1) In order to carry out the purposes of this article,

the secretary, upon presenting appropriate credentials to the

employer, may:

(i) enter without advance notice and at reasonable

times any workplace or environment where work is

performed by an employee of an employer;

(ii) inspect and investigate, during regular working

hours and at other reasonable times and in a reasonable

manner, any place of employment under subparagraph (i)

and all pertinent conditions, structures, machines,

apparatus, devices, equipment and the materials therein;

and

(iii) question privately any employer or employee.

(2) Whenever the secretary, proceeding pursuant to this

section, is denied admission to any place of employment, the

secretary may obtain a warrant to make an inspection or

investigation of the place of employment from any judge of

Commonwealth Court.

(b) Witnesses and evidences.--

(1) In making inspections and investigations under this

section, 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.

(2) In case of a failure or refusal of any person to

obey an order, the court of common pleas for the judicial

district wherein the person resides, is found or transacts

business shall issue to the person an order requiring the

person to appear to produce evidence if asked, and when so

ordered, and to give testimony relating to the matter under

investigation or in question.

(3) A failure to obey an order of the court may be

punishable by the court as a contempt.

(1) Subject to regulations issued by the secretary, a

representative of the employer and an authorized employee

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representative shall be given an opportunity to accompany the

secretary during the physical inspection of any workplace for

the purposes of aiding the inspection. Where there is no

authorized employee representative, the secretary shall

consult with a reasonable number of employees concerning

matters of health and safety in the workplace.

(2) No employee who accompanies the secretary on an

inspection may suffer any reduction in wages as a result

thereof.

Section 2212-C. Inspection and investigation of violations.

(a) Request for inspection.--

(1) An employee or authorized employee representative

who believes that a violation of an occupational safety or

health standard exists or that an imminent danger exists may

request an inspection by giving notice of a violation or

danger to the secretary.

(2) The notice and request shall be in writing, shall

set forth with reasonable particularity the grounds for the

notice and shall be signed by an employee or authorized

employee representative.

(3) A copy of the notice shall be provided by the

secretary to the employer or its agent no later than the time

of inspection, except that on the request of the person

giving notice, the names of individual employees or the

authorized employee representative shall be kept

confidential.

(b) Action by secretary.--

(1) Whenever the secretary receives a request for

inspection and determines that there are reasonable grounds

to believe that a violation or danger exists, the secretary

shall make an inspection as soon as practicable to determine

if a violation or danger exists. The inspection may be

limited to the alleged violation or danger.

(2) If the secretary determines there are no reasonable

grounds to believe that a violation or danger exists, the

secretary shall notify the employer, employee or authorized

employee representative in writing of the determination.

Notification may not preclude future enforcement action if

conditions change.

(1) Prior to or during any inspection of a workplace, an

employee or authorized employee representative employed in

the workplace may notify in writing the secretary or any

representative of the secretary responsible for conducting

the inspection of any violation of this article that the

person has reason to believe exists in the workplace.

(2) The secretary shall by regulation establish

procedures for informal review of any refusal by a

representative of the secretary to issue a citation with

respect to any alleged violation and shall furnish a written

statement to the employer and the employees or authorized

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employee representative requesting a review of the reasons

for the secretary's final disposition of the case.

Notification may not preclude future enforcement action if

conditions change.

(d) Summary by secretary.--The secretary shall compile,

analyze and publish in either summary or detailed form all

reports or information obtained under this section.

(e) Rules and regulations.--The secretary shall prescribe

such rules and regulations as the secretary may deem necessary

to carry out the secretary's responsibilities under this

article, including rules and regulations dealing with the

inspection of an employer's or owner's establishment.

Section 2213-C. Recordkeeping.

(a) Employer's duties prescribed by regulation.--In

accordance with the secretary's regulations, an employer shall

make, keep and preserve and make available to the secretary such

records regarding its activities relating to this article as the

secretary deems necessary or appropriate for developing

information regarding the causes and prevention of occupational

accidents and illnesses. The regulations may include provisions

requiring an employer to conduct periodic inspections. The

secretary also shall issue regulations requiring that an

employer, through posting of notices, training or other

appropriate means, keep its employees informed of their

protections and obligations under this article, including the

provisions and regulations of this article.

(b) Records relating to death and injury.--The secretary

shall prescribe regulations requiring an employer to maintain

accurate records and to make public periodic reports of work-

related deaths, injuries and illnesses, other than minor

injuries requiring only first aid treatment and not involving

lost time from work, medical treatment, loss of consciousness,

restriction of work or motion or transfer to another job.

(1) The secretary shall issue regulations requiring an

employer to maintain accurate records of employee exposures

to potentially toxic materials or harmful physical agents

that are required to be monitored or measured under any

occupational safety and health standard adopted under this

article. The regulations shall provide employees or the

authorized employee representative with an opportunity to

observe monitoring or measuring and have access to the

records. The regulations shall make appropriate provisions

for each employee or former employee to have access to

records that will indicate the employee's own exposure to

toxic materials or harmful physical agents.

(2) An employer shall promptly notify any employee who

has been or is being exposed to toxic materials or harmful

physical agents in concentrations or at levels that exceed

those prescribed by an occupational safety and health

standard promulgated under this article and shall inform any

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employee who is being thus exposed of the corrective action

being taken.

Section 2214-C. Compliance orders.

(a) Issuance.--Whenever the secretary, upon inspection or

investigation, determines that an employer has violated a

provision of this article or an occupational safety or health

standard or regulation promulgated under this article, the

secretary shall with reasonable promptness issue a compliance

order to the employer. Each compliance order shall be in writing

and shall describe the nature of the violation, including a

reference to the provisions of this article or the standard,

regulation or order alleged to have been violated. The

compliance order shall fix a reasonable time for the abatement

of the violation.

(b) Posting of order.--Each compliance order issued under

this section or a copy or copies of the order shall be

prominently posted as prescribed in regulations issued by the

secretary at or near each place a violation referred to in the

compliance order occurred and at other locations within the

workplace reasonably accessible to the employees.

Section 2215-C. Enforcement procedures.

(a) Notice of order and penalty.--

(1) If, after inspection or investigation, the secretary

issues a compliance order under section 2214-C, the secretary

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 2217-C. The notification shall inform the employer

that the employer has 15 working days from the receipt of

notice within which to notify the secretary that the employer

wishes to contest the compliance order or proposed assessment

of penalty.

(2) If the employer fails to notify the secretary within

15 days and if no notice is filed by an employee or

authorized employee representative under subsection (c)

within 15 days, the compliance order and the assessment, as

proposed, shall be deemed a final order of the secretary and

not be subject to review by any court or agency.

(b) Notice of failure to correct violation.--

(1) If the secretary has reason to believe that an

employer has failed to correct a violation for which a

compliance order has been issued within the period permitted

for correction, the secretary shall notify the employer by

certified mail of the failure and of the penalty proposed to

be assessed under section 2217-C by reason of the failure. In

the case, however, of a review proceeding initiated by the

employer under this section in good faith and not solely for

delay or the avoidance of penalties, the period permitted for

correction of the violation may not begin to run until the

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

the secretary shall inform the employer that the employer has

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15 working days from the receipt of the notice within which

to notify the secretary that the employer wishes to contest

the notification or the proposed assessment of penalty.

(2) If, within 15 days from receipt of notification

under this section, the employer fails to notify the

secretary 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

review board and not be subject to review by any court or

agency.

(1) If an employer notifies the secretary that it

intends to contest a compliance order issued under section

2214-C(a) or a notification issued under subsection (a) or

(b) or if, within 15 days after the issuance of a compliance

order issued under section 2214-C(a), an employee or

authorized employee representative files a notice with the

secretary alleging that the period of time fixed in the

compliance order for abatement of the violation is

unreasonable, the secretary shall immediately advise the

review board of the notification, and the review board shall

afford an opportunity for a hearing.

(2) The review board shall thereafter issue an order,

based on findings of fact, affirming, modifying or vacating

the secretary's compliance order or proposed penalty or

directing other appropriate relief. The order shall become

final 30 days after its issuance.

(3) Upon a showing by an employer of a good faith effort

to comply with the abatement requirements of a compliance

order and a showing that abatement has not been completed

because of factors beyond the employer's reasonable control,

the secretary, after an opportunity for a hearing as provided

in this subsection, shall issue an order affirming or

modifying the abatement requirements in the compliance order.

(4) The rules of procedure prescribed by the secretary

shall provide affected employees or the authorized employee

representative of affected employees an opportunity to

participate as parties to hearings under this subsection.

Section 2216-C. Injunction proceedings.

(a) Temporary restraining order.--

(1) The Commonwealth Court shall have jurisdiction, upon

petition of the secretary, pursuant to law and general rules,

to restrain any conditions or practices in any place of

public employment that pose a danger that could reasonably be

expected to cause death or serious physical harm immediately

or before the imminence of the danger can be eliminated

through the abatement procedures otherwise provided for by

this article.

(2) An order issued under this section shall require

steps to be taken as may be necessary to avoid, correct or

remove the imminent danger and prohibit the employment or

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presence of an individual in locations or under conditions

where the imminent danger exists, except individuals whose

presence is necessary to avoid, correct or remove the

imminent danger.

(3) A temporary restraining order issued without notice

may not be effective for more than five days.

(b) Action by inspector.--Whenever and as soon as an

inspector concludes that conditions or practices described in

subsection (a) exist in any place of public employment, the

inspector shall inform the affected employees and employers of

the danger and shall further inform them that the inspector is

recommending to the secretary that relief be sought.

arbitrarily or capriciously fails to seek relief under this

section, an employee who may be injured by reason of the

failure, or the authorized employee representative of the

employee, may bring an action against the secretary in

Commonwealth Court to compel the secretary to seek an order and

for such further relief as may be appropriate.

Section 2217-C. Penalties.

(a) Willful or repeated violations.--An employer who

willfully or repeatedly violates the requirements of section

2204-C or 2205-C, an occupational safety and health standard

promulgated under section 2207-C or regulations prescribed under

this article may be assessed a civil penalty of not more than

$10,000 for each violation.

(b) Compliance order for serious violation.--An employer who

has received a compliance order for a serious violation of the

requirements of section 2204-C or 2205-C, an occupational safety

and health standard promulgated under section 2207-C or

regulations prescribed under this article shall be assessed a

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

has received a compliance order for a violation of the

requirements of section 2204-C or 2205-C, an occupational safety

and health standard promulgated under section 2207-C or

regulations prescribed under this article, which violation has

been determined not to be of a serious nature, may be assessed a

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

(d) Failure to correct violation.--An employer who fails to

correct a violation for which a compliance order has been issued

under section 2214-C within the period permitted for its

correction, which period shall not begin to run until the date

of the final order of the board in the case of any review

proceeding under section 2215-C initiated by the employer in

good faith and not solely for delay or avoidance of penalties,

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

day during which the failure or violation continues.

(e) Violation causing death.--

(1) An employer who willfully violates a standard or

order promulgated pursuant to section 2207-C or a regulation

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adopted under this article, which violation caused death to

any employee, commits a misdemeanor and shall, upon

conviction, be sentenced to pay a fine of not more than

$10,000 or to imprisonment for not more than six months, or

both.

(2) If a conviction is for a violation committed after a

first conviction, the person shall be sentenced to pay a fine

of not more than $20,000 or to imprisonment for not more than

one year, or both.

(f) Providing advance notice of inspection.--A person who

gives advance notice of any inspection to be conducted under

this article without authority from the secretary commits a

misdemeanor and shall, upon conviction, be sentenced to pay a

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

than six months, or both.

(g) False statements.--A person who knowingly makes any

false statement, representation or certification in any

application, record, report, plan or other document filed or

required to be maintained under this article commits a

misdemeanor and shall, upon conviction, be sentenced to pay a

fine of not more than $10,000 or to imprisonment for not more

than six months, or both.

(h) Violation of posting requirements.--An employer who

violates any of the posting requirements as prescribed under the

provisions of this article shall be assessed a civil penalty of

not more than $1,000 for each violation.

(i) Refusing entry for investigation or inspection.--An

employer who refuses entry to the secretary while the secretary

is attempting to conduct an investigation or inspection under

this article or in any way willfully obstructs an authorized

representative from carrying out an investigation or inspection

commits a misdemeanor and shall, upon conviction, be sentenced

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

more than six months, or both.

(j) Causing bodily harm to secretary.--An employer or

individual who willfully causes bodily harm to the secretary

while the secretary is attempting to conduct an investigation or

inspection under this article commits a misdemeanor and shall,

upon conviction, be sentenced to pay a fine of not more than

$10,000 or to imprisonment for not more than one year, or both.

(k) Authority to assess civil penalties.--The review board

shall have authority to assess all civil penalties provided for

in this article, giving due consideration to the appropriateness

of the penalty with respect to the size of the business of the

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

faith of the employer and the history of previous violations.

(l) Determination of serious violation.--For the purposes of

this article, a serious violation shall be deemed to exist in a

place of employment if there is a substantial probability that

death or serious physical harm could result from a condition

that exists, or from one or more practices, means, methods,

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operations or processes that have been adopted or are in use, in

the place of employment unless the employer did not and could

not with the exercise of reasonable diligence know of the

presence of the violation.

(m) Disposition of civil penalties.--Civil penalties owed

under this article shall be paid to the secretary for deposit in

the State Treasury and may be recovered in a civil action in the

name of the Commonwealth brought in Commonwealth Court.

(n) Unauthorized disclosure of confidential information.--A

person who violates the provisions of section 2222-C commits a

misdemeanor and shall, upon conviction, be sentenced to pay a

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

than one year, or both. In the event that the person is an

officer or employee responsible for carrying out the provisions

of this article, the officer or employee shall be removed from

office or employment upon conviction under this section.

Section 2218-C. Discrimination against employees.

(a) General rule.--An employer or any other person may not

discriminate against an employee because the employee has filed

a complaint or instituted or caused to be instituted a

proceeding under or related to this article or has testified or

is about to testify in a proceeding or because of the exercise

by an employee on the employee's own behalf or on behalf of

others of a right afforded by this article.

(b) Remedy.--

(1) An employee who believes that the employee has been

discharged, disciplined or otherwise discriminated against by

a person in violation of this section may, within 30 days

after a violation occurs, file a complaint with the secretary

alleging discrimination.

(2) Upon receipt of the complaint, the secretary shall

cause an investigation to be made as deemed appropriate and

shall, if requested, withhold the name of the complainant

from the employer.

(3) If, upon investigation, the secretary determines

that the provisions of this section have been violated, the

secretary shall request the Attorney General to bring an

action in Commonwealth Court against the person or persons

alleged to have violated this article. In any such action,

the Commonwealth Court shall have jurisdiction, for cause

shown, to restrain violations of this article and to order

all appropriate relief, including reinstatement of the

employee to the employee's former position with back pay and

benefits.

receipt of a complaint filed under this section, the secretary

shall notify the complainant and the complainant's

representative by registered mail of the secretary's

determination of the complaint.

(d) Other rights preserved.--Nothing in this article may be

construed to diminish the rights of an employee under any law,

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rule or regulation or under any collective bargaining agreement.

Section 2219-C. Research and demonstration projects.

(a) Secretary to conduct.--

(1) The secretary shall conduct research and undertake

demonstration projects relating to occupational safety and

health issues and problems either within the Department of

Labor and Industry or by grants or contracts. The secretary

may prescribe regulations requiring employers to measure,

record and make reports on exposure of employees to toxic

substances that the secretary believes may endanger the

health or safety of employees.

(2) The secretary shall cooperate with the Director of

the National Institute for Occupational Safety and Health of

the United States Department of Health and Human Services in

establishing the programs of medical examinations and tests

as may be necessary to determine the incidence of

occupational illnesses and employee susceptibility to the

illnesses.

(3) The programs, on the request of the employer, may be

paid for by the secretary, and the secretary shall provide

other assistance as may be required.

(b) Confidentiality.--Information obtained under this

article shall be made public without revealing the names of

individual workers covered by physical examination or special

studies and shall be made available to employers, employees and

their respective organizations.

Section 2220-C. Education programs.

(a) Programs to train personnel.--The secretary shall

conduct directly, or by grants or contracts, education programs

to provide an adequate supply of qualified personnel to carry

out the purposes of this article and informational programs on

the importance and proper use of adequate safety and health

equipment.

(b) Short-term training.--The secretary may conduct

directly, or by grants or contracts, short-term training of

personnel engaged in work related to the secretary's

responsibilities under this article.

the establishment and supervision of programs for the education

and training of employers, owners and employees in the

recognition, avoidance and prevention of unsafe or unhealthful

working conditions in employment covered under this article. The

secretary shall consult with and advise owners and employers,

employees and organizations representing owners, employers and

employees as to effective means of preventing occupational

injuries and illnesses.

Section 2221-C. Reports to United States Secretary of Labor.

In regard to the administration and enforcement of this

article, the secretary shall make reports to the United States

Secretary of Labor in a form and containing information that the

Secretary of Labor shall from time to time require.

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Section 2222-C. Confidentiality of information maintained.

All information reported to or otherwise obtained by the

secretary or any member of the review board in connection with

an inspection or proceeding under this article that contains or

might reveal a trade secret shall be considered confidential,

provided that the information may be disclosed to other officers

or employees concerned with carrying out this article or when

relevant in any proceeding under this article. In proceedings

under this article, the secretary, the review board or the court

shall issue orders that may be appropriate to protect the

confidentiality of trade secrets.

Section 2223-C. Funding.

Nothing in this article may prohibit the secretary from

pursuing Federal or State funding for the purposes of this

article.

Section 2. This act shall take effect as follows:

(1) The addition of Article XXII-C of the act shall take

effect in 60 days.

(2) The remainder of this act shall take effect

immediately.

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