SB-1336, As Passed House, December 12, 2012

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SENATE BILL No. 1336

 

 

September 27, 2012, Introduced by Senator COLBECK and referred to the Committee on Reforms, Restructuring and Reinventing.

 

 

 

     A bill to amend 1974 PA 154, entitled

 

"Michigan occupational safety and health act,"

 

by amending sections 5, 14a, 14b, 14d, 14e, 14f, 14h, 14j, 14k, 14l,

 

24, 31, 54, and 63 (MCL 408.1005, 408.1014a, 408.1014b, 408.1014d,

 

408.1014e, 408.1014f, 408.1014h, 408.1014j, 408.1014k, 408.1014l,

 

408.1024, 408.1031, 408.1054, and 408.1063), sections 5, 31, and 63

 

as amended and sections 14a, 14b, 14d, 14e, 14h, 14j, 14k, and 14l

 

as added by 1986 PA 80, section 14f as amended by 1996 PA 70, and

 

section 24 as amended by 1991 PA 105; and to repeal acts and parts

 

of acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 5. (1) "Employee" means a person permitted to work by an

 

employer.

 

     (2) "Employer" means an individual or organization, including

 

the state or a political subdivision, which employs 1 or more

 

persons.

 

     (3) "Imminent danger" means a condition or practice in a place

 

of employment which is such that a danger exists which could

 

reasonably be expected to cause death or serious physical harm

 

either immediately or before the imminence of the danger can be

 

eliminated through the enforcement procedures otherwise provided. A

 

container of an unknown and unlabeled chemical or a container of

 

hazardous chemicals that is not labeled or for which a material

 

safety data sheet is not available as required by the standard

 

incorporated by reference in section 14a shall be considered an

 

imminent danger after meeting the provisions of section 31.

 

     (4) "Inspection" means the examination or survey of a place of

 

employment to detect the presence of an existing or potential

 

occupational safety or health hazard or to determine compliance

 

with this act, rules or standards promulgated, or orders issued

 

pursuant to this act.

 

     (5) "Investigation" means the detailed evaluation or study of

 

working conditions, including equipment, processes, substances, air

 

contaminants, or physical agents with respect to the actual or

 

potential occurrence of occupational accidents, illnesses, or

 

diseases.

 

     Sec. 14a. (1) The occupational safety and health hazard

 

communication standard that has been adopted or promulgated by the

 

United States department of labor and has been codified at 29

 

C.F.R. CFR 1910.1200 as of the effective date of the amendatory act

 

that adds this section May 25, 2012 is incorporated by reference

 

and shall have has the same force and effect as a rule promulgated

 

pursuant to under this act. In addition to the standard

 

incorporated by reference in this subsection, sections 14b to 14l

 

shall apply to an employer subject to this act. The applicability

 

of the standard incorporated by reference in this subsection and of

 

sections 14b to 14l is subject to subsections (4), (5), (6), and

 

(7).

 

     (2) When If a rule or standard that is continued pursuant to

 

section 24(3) 24(1) is in conflict with or covers the same or

 

similar subject as a standard incorporated by reference pursuant to

 

subsection (1), the federal standard so incorporated by reference

 

shall govern, governs and the state rule or standard continued

 

pursuant to section 24(3) 24(1) is rescinded.

 

     (3) The department of labor licensing and regulatory affairs

 

shall administer and enforce the provisions of the standard

 

incorporated by reference in subsection (1) relative to

 

occupational safety. The department of public health shall

 

administer and enforce the provisions of the standard incorporated

 

by reference in subsection (1) relative to occupational health. The

 

departments of public health and labor shall administer and enforce

 

the provisions of the standard incorporated by reference in

 

subsection (1) in a manner that is consistent with the

 

administration and enforcement of the standard by the federal

 

occupational safety and health administration.

 

     (4) Beginning November 25, 1985, employers who are chemical

 

manufacturers in a classification provided by sector 31-33 —

 

manufacturing, of the North American industry classification

 

system, United States, 1997, published by the office of management

 

and budget or in a standard industrial classification of 20 through

 

39 of the standard industrial classification code published by the

 

federal department of management and budget, importers, and

 

distributors shall label containers of hazardous chemicals leaving

 

their workplaces, provide material safety data sheets with initial

 

shipments, and otherwise comply with any applicable provision of

 

the standard incorporated by reference pursuant to subsection (1)

 

and of sections 14b to 14l. A chemical manufacturer, importer, or

 

distributor subject to this subsection shall provide a material

 

safety data sheet and an appropriately labeled container to each

 

employer in this state, regardless of the employer's standard

 

industrial classification in the standard industrial classification

 

code, who purchases a hazardous chemical.

 

     (5) Beginning May 25, 1986, an employer in a classification

 

provided by sector 31-33 — manufacturing, of the North American

 

industry classification system, United States, 1997, published by

 

the office of management and budget or in a standard industrial

 

classification of 20 through 39 of the standard industrial

 

classification code published by the federal department of

 

management and budget shall comply with the requirements of the

 

standard incorporated by reference pursuant to subsection (1) and

 

with sections 14b to 14l with respect to the use of hazardous

 

chemicals in the workplace.

 

     (6) Beginning February 25, 1987, an employer who is subject to

 

this act but who is not otherwise specifically described in

 

subsections (4) and or (5) shall comply with the requirements of

 

the standard incorporated by reference pursuant to subsection (1)

 

and with sections 14b to 14l with respect to the use of hazardous

 

chemicals in the workplace. However, instead of complying with any

 

conflicting provision of the standard incorporated by reference in

 

subsection (1), an employer who is described in this subsection is

 

required:shall do both of the following:

 

     (a) To provide Provide information and training only to

 

employees who are exposed to hazardous chemicals in the normal

 

course of employment or who are likely to be exposed to hazardous

 

chemicals in the event of an emergency.

 

     (b) In the case where a hazardous chemical is mixed or

 

combined with any other chemical or hazardous chemical by the

 

employer, to maintain and provide a material safety data sheet for

 

each constituent hazardous chemical and to maintain a material

 

identification system that identifies to employees the appropriate

 

material safety data sheets.

 

     (7) The standard incorporated by reference in subsection (1),

 

this section, and sections 14b to 14l shall not be construed to

 

require an employer in a classification provided by sector 31-33 —

 

manufacturing, of the North American industry classification

 

system, United States, 1997, published by the office of management

 

and budget or in a standard industrial classification other than 20

 

through 39 of the standard industrial classification code published

 

by the federal department of management and budget to evaluate

 

chemicals, to develop labels for containers of hazardous chemicals,

 

or to develop material safety data sheets.

 

     Sec. 14b. In nonemergency situations, a chemical manufacturer,

 

importer, or employer claiming a trade secret, upon request, shall

 

disclose a specific chemical identity, percentage composition, or

 

both, otherwise permitted to be withheld under the standard

 

incorporated by reference in section 14a, in addition to a health

 

professional as specified in 29 C.F.R. CFR 1910.1200(i)(3), to an

 

occupational health nurse providing medical or other occupational

 

health services to exposed employees, to an authorized employee

 

representative of an exposed employee, and to an exposed employee,

 

if the occupational health nurse, the representative, and the

 

employee comply with the requirements described in 29 C.F.R. CFR

 

1910.1200(i)(3) and (4).

 

     Sec. 14d. (1) Upon request of the director, of the department

 

of public health, an employer who claims a trade secret under the

 

standard incorporated by reference by section 14a shall support the

 

trade secret claim. Subject to subsection (2), the director shall

 

consider the following factors in determining whether a specific

 

chemical identity may be withheld as a trade secret:

 

     (a) The extent to which the information is known outside the

 

employer's business.

 

     (b) The extent to which it is known by employees and others

 

involved in the employer's business.

 

     (c) The extent of measures taken by the employer to guard the

 

secrecy of the information.

 

     (d) The value of the information to the employer and the

 

employer's competitors.

 

     (e) The amount of effort and money expended by the employer in

 

developing the information.

 

     (f) The ease or difficulty with which the information could be

 

properly acquired or duplicated by others.

 

     (2) The determination made by the director under subsection

 

(1) shall not uphold as a trade secret any chemical identity

 

information that is readily discoverable through reverse

 

engineering.

 

     (3) This section shall not be construed to require the prior

 

approval of trade secret claims by the director. of the department

 

of public health or the director of the department of labor.

 

     (4) An exposed employee, a health professional providing

 

medical or other occupational health services to exposed employees,

 

or an authorized employee representative of an exposed employee may

 

petition the director of the department of public health to review

 

a denial of a written request for disclosure of a specific chemical

 

identity. This review shall be conducted as a contested case

 

pursuant to the administrative procedures act of 1969, Act No. 306

 

of the Public Acts of 1969, being sections 24.201 to 24.328 of the

 

Michigan Compiled Laws, 1969 PA 306, MCL 24.201 to 24.328, and

 

shall be confidential. The director shall review the assertion of

 

trade secrecy and make a determination in accordance with the

 

principles provided in this section and the standard incorporated

 

by reference in section 14a. In preparing the final order, the

 

director shall consider and require any prudent measures necessary

 

to protect the health of employees or the public in general while

 

maintaining the confidentiality of any trade secrets.

 

     (5) The director of public health may revoke any order entered

 

under subsection (4) upholding a trade secret claim after a hearing

 

involving the parties of interest upon showing that a party has not

 

complied with an order issued pursuant to subsection (4).

 

     (6) Records and information obtained by any department,

 

commission, or public agency related to a review by the director of

 

public health under subsection (4) and to information determined by

 

the director to be a trade secret in that review shall be is exempt

 

from disclosure under the freedom of information act, Act No. 442

 

of the Public Acts of 1976, being sections 15.231 to 15.246 of the

 

Michigan Compiled Laws.1976 PA 442, MCL 15.231 to 15.246.

 

     (7) Notwithstanding that information has been claimed as a

 

trade secret pursuant to 29 C.F.R. CFR 1910.1200(i) or has been

 

upheld by the director as a trade secret pursuant to under this

 

section, a chemical manufacturer, importer, or employer shall

 

provide the specific chemical identity and percentage composition

 

of a hazardous chemical to the director of public health when the

 

director requests that information in the discharge of the

 

director's duties under this act.

 

     Sec. 14e. In order to educate employers, employees, and the

 

public about the hazards of exposure to hazardous chemicals and the

 

requirements of the occupational safety and health hazard

 

communication standard incorporated by reference in section 14a and

 

the requirements of sections 14b to 14l, the departments of public

 

health and labor department of licensing and regulatory affairs

 

shall distribute periodically public service announcements to

 

newspapers and television and radio stations throughout this state.

 

     Sec. 14f. (1) An employer engaged in agricultural operations

 

is not required to comply with the standard incorporated by

 

reference in section 14a or sections 14b to 14 l for a hazardous

 

chemical that is regulated under the federal insecticide,

 

fungicide, and rodenticide act, chapter 125, 86 Stat. 973, 7 U.S.C.

 

USC 136 to 136i and 136j to 136y, or part 83 (pesticide control) of

 

the natural resources and environmental protection act, Act No. 451

 

of the Public Acts of 1994, being sections 324.8301 to 324.8336 of

 

the Michigan Compiled Laws, 1994 PA 451, MCL 324.8301 to 324.8336,

 

and any rules or regulations promulgated under those acts.

 

     (2) The director of the department of agriculture and rural

 

development at least annually shall certify to the department of

 

public health licensing and regulatory affairs a list of chemicals

 

regulated by the acts described in subsection (1).

 

     Sec. 14h. An employer engaged in construction operations may

 

satisfy the requirements of the standard incorporated in section

 

14a and sections 14b to 14 l 14l that a material safety data sheet

 

be maintained for each hazardous chemical in the workplace by

 

maintaining material safety data sheets in 1 or more central

 

locations at a job site.jobsite.

 

     Sec. 14j. An employer subject to the standard incorporated by

 

reference in section 14a and to sections 14b to 14l shall post signs

 

throughout the workplace advising employees of all of the

 

following:

 

     (a) The location of the material safety data sheets for the

 

hazardous chemicals produced or used in the workplace and the name

 

of the person from whom to obtain the sheets.

 

     (b) That the employer is prohibited from discharging or

 

discriminating against an employee who exercises the rights

 

regarding information about hazardous chemicals in the workplace

 

afforded by the standard incorporated by reference in section 14a

 

and by sections 14b to 14l.

 

     (c) That, as an alternative to requesting the employer for a

 

material safety data sheet for a hazardous chemical in the

 

workplace, the employee may obtain a copy of the material safety

 

data sheet from the department of public health. licensing and

 

regulatory affairs. The sign shall include the address and

 

telephone number of the division of the department of public health

 

licensing and regulatory affairs that has the responsibility of

 

responding to such requests.

 

     Sec. 14k. (1) An employer who is subject to the standard

 

incorporated by reference in section 14a and to sections 14b to 14l

 

shall organize the material safety data sheets for the hazardous

 

chemicals in the workplace in a systematic and consistent manner

 

and shall train employees in locating particular material safety

 

data sheets.

 

     (2) Not later than 5 working days after receipt of a new or a

 

revised material safety data sheet, the employer shall post for a

 

period of 10 working days a notice of the existence of the new or

 

revised sheet and directions for locating the new or revised sheet

 

according to the method used by the employer for organizing

 

material safety data sheets.

 

     Sec. 14l. The failure of an employer who is subject to the

 

standard incorporated by reference in section 14a and to this

 

section and sections 14b to 14k to provide an exposed employee with

 

access to the most current material safety data sheet available to

 

the employer shall not be considered by the department as a

 

violation for which a de minimis notice of violation may be issued

 

under section 33(5). The department may consider such a the

 

violation to be a serious violation or a violation not of a serious

 

nature for which a citation may be issued under section 35.

 

     Sec. 24. (1) Before a proposed standard, except an emergency

 

standard, is promulgated, the commission shall appoint and consult

 

with an advisory committee which shall be representative of the

 

major interests affected by the proposed standard. The members of

 

the advisory committee shall be selected on the basis of their

 

experience and competence in the subject of the proposed standard.

 

At least 1 member of each advisory committee shall be a person who

 

devotes a major portion of time to occupational health functions.

 

     (2) The per diem compensation and the schedule for

 

reimbursement of expenses for members of the occupational health

 

standards advisory committees shall be established annually by the

 

legislature.

 

     (1) (3) Standards governing occupational health promulgated by

 

the director of public health that are in effect on January 1, 1975

 

the effective date of the amendatory act that repealed section 23

 

of this act are continued under section 31 of the administrative

 

procedures act of 1969, Act No. 306 of the Public Acts of 1969, as

 

amended, being section 24.231 of the Michigan Compiled Laws 1969 PA

 

306, MCL 24.231.

 

     (2) (4) The occupational health standards commission director

 

shall promulgate an occupational health standard pursuant to Act

 

No. 306 of the Public Acts of 1969, as amended, being sections

 

24.201 to 24.328 of the Michigan Compiled Laws, the administrative

 

procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, except

 

for standards adopted by reference pursuant to section 14. Until

 

April 1, 1992, adoption of a standard shall be by a majority of the

 

members present if a quorum is present. Beginning April 1, 1992,

 

any action taken by the occupational health standards commission

 

requires an affirmative vote of not less than 4 members of the

 

commission, including at least 1 representative of labor and 1

 

representative of management.

 

     (3) (5) When promulgating occupational health standards, the

 

occupational health standards commission director shall promulgate

 

a standard that most adequately assures, to the extent feasible and

 

on the basis of the best available evidence, that an employee will

 

not suffer material impairment of health or functional capacity,

 

even if the employee has regular exposure to a hazard dealt with by

 

the standard for the period of his or her working life.

 

     (4) (6) The director of public health shall promulgate an

 

emergency standard pursuant to section 48 of Act No. 306 of the

 

Public Acts of 1969, as amended, being section 24.248 of the

 

Michigan Compiled Laws, when the administrative procedures act of

 

1969, 1969 PA 306, MCL 24.248, if the director finds that employees

 

are exposed to substances or agents determined to be toxic or

 

physically harmful and the emergency standard is necessary to

 

protect employees from that danger. If the director of public

 

health is promulgating promulgates an emergency standard on a

 

matter addressed by a federal standard, the director of public

 

health shall promulgate a standard that is substantially similar to

 

the federal standard unless he or she determines and certifies that

 

the federal standard is clearly inconsistent with the criteria set

 

forth in section 9 or 24. , or both.

 

     (5) (7) A An occupational health standard shall prescribe

 

appropriate forms of warning that are necessary to insure that

 

employees are apprised of health hazards to which they are exposed,

 

relevant symptoms, and the conditions and precautions for safe use

 

or exposure, including appropriate emergency treatment. If

 

appropriate, a standard shall prescribe suitable protective

 

equipment, control, or technological procedures to be used and

 

shall require an employer to monitor or measure employee exposure,

 

to allow employees or their representatives to observe the

 

monitoring and have access to the records of the monitoring, and to

 

conduct the monitoring in a manner that is necessary for the

 

protection of the employees' health. Former employees shall have

 

access to the records indicating their exposure to toxic materials

 

and harmful physical agents.

 

     (6) (8) If appropriate, the occupational health standards

 

commission director shall prescribe by standard that medical

 

examinations or tests are made available, at the employer's cost,

 

to employees to determine if they are adversely affected by

 

exposure to health hazards. If the examination is performed by a

 

physician other than a physician who is retained for that purpose

 

by the employer, the employer is responsible only for the

 

reasonable costs of the examination, and only for costs related to

 

the performance of the examination required by the standard. The

 

results of the examinations or tests shall be furnished to the

 

employer, the employee, and upon request of the employee, to the

 

employee's personal physician. , and upon Upon request of the

 

director, of public health, the employer shall furnish results of

 

the examinations or tests to the director. of public health by the

 

employer. However, this act does not authorize or require medical

 

examinations, immunizations, or treatments for those who object to

 

them on religious grounds, except where if necessary for the

 

protection of the health or safety of others.

 

     Sec. 31. (1) When and as soon as a department representative

 

determines that an imminent danger exists in a place of employment,

 

the department representative shall inform the employer and the

 

affected employees of a determination of the imminent danger. The

 

department representative immediately shall recommend to the

 

appropriate department director that an order be issued to require

 

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

 

remove the imminent danger. After receiving authorization for the

 

issuance of an order from the appropriate department director, the

 

department representative shall apply a tag to the equipment or

 

process which that is the source of the imminent danger identifying

 

that an imminent danger exists. The tag shall be removed only by

 

the department representative. At request of the employer, an area

 

supervisor shall, within 24 hours after a request, make an on site

 

review of any tagging and recommend continuance or removal. The

 

order shall prohibit the employment or presence of an individual in

 

locations or under conditions where imminent danger exists, except

 

individuals whose presence is necessary to avoid, correct, or

 

remove the imminent danger in a safe and orderly manner. In tagging

 

the equipment or process which that is the source of imminent

 

danger and in issuing the order, consideration shall be given to

 

any necessity to maintain the capacity of a continuous process

 

operation and to the reestablishment of normal operations without a

 

complete cessation of operations.

 

     (2) An employer shall not permit an employee, other than an

 

employee whose presence is necessary to avoid, correct, or remove

 

the imminent danger, to operate equipment or engage in a process

 

which that has been tagged by the department and which that is the

 

subject of an order issued by the department identifying that an

 

imminent danger exists. An employee who suffers a loss of wages or

 

fringe benefits or is in any manner discriminated against for

 

refusing to operate equipment or engage in a process which that has

 

been tagged by the department and which that is the subject of an

 

order issued by the department, as provided in this section, may

 

file a discrimination complaint, and the department of labor

 

licensing and regulatory affairs may order appropriate relief as

 

provided in section 65. This section does not prohibit an employer

 

from assigning an employee to an operation not affected by the

 

imminent danger situation, subject to any collective bargaining

 

agreement.

 

     (3) Upon failure of the employer to promptly comply with a

 

department order, as described in subsection (1), the appropriate

 

department shall petition the circuit court having jurisdiction to

 

restrain a condition or practice in a place of employment which

 

that the department determines causes has determined to cause the

 

imminent danger.

 

     (4) If the department arbitrarily or capriciously fails to

 

seek relief under this section, an employee who may be injured by

 

reason of the failure, or the representative of those employees,

 

may bring action against the department in the circuit court having

 

jurisdiction for a writ of mandamus to compel the department to

 

seek an order and for further relief, as may be appropriate.

 

     (5) The department of public health or the department of labor

 

licensing and regulatory affairs shall respond within 24 hours

 

after receipt of an imminent danger complaint concerning an unknown

 

and unlabeled container of chemicals or an imminent danger

 

complaint concerning a container of hazardous chemicals that is not

 

labeled or for which a material safety data sheet is not available

 

as required by the standard incorporated by reference in section

 

14a and by sections 14b to 14 l.14l.

 

     (6) Before a department representative seeks authorization to

 

issue an order pursuant to the procedures prescribed in subsection

 

(1), an employer shall be given a reasonable opportunity to

 

identify, label, or provide the material safety data sheet for the

 

container which that is the subject of the imminent danger

 

determination.

 

     Sec. 54. (1) A safety education and training division is

 

created within the department of labor.licensing and regulatory

 

affairs.

 

     (2) The functions of the safety education and training

 

division shall include:

 

     (a) The development and application of a statewide safety

 

education and training program to familiarize employers,

 

supervisors, employees, and union leaders with techniques of

 

accident investigation and prevention.

 

     (b) The development and utilization of consultative

 

educational techniques to achieve long-range solutions to

 

occupational safety problems.

 

     (c) The development of training programs for the department of

 

labor safety compliance staff.

 

     (d) The acquisition, development, and distribution of

 

occupational safety pamphlets, booklets, brochures, and other

 

appropriate safety media as may be useful to accomplish the

 

objectives of this the safety education and training division.

 

     (e) The conduct of other activities as necessary for the

 

implementation of an effective safety education and training

 

program.

 

     (f) The development and administration of a program for

 

employers, with special emphasis on small business employers,

 

providing technical and educational assistance.

 

     (g) The development and implementation of a training and

 

education program for department staff engaged in the

 

administration and enforcement of this act.

 

     (3) The department shall publish a newsletter at least

 

quarterly.

 

     (4) When a commission or the board, or the director of labor

 

or the director of public health promulgates a standard or a rule

 

or issues an order, a brief statement shall be included indicating

 

the reasons for the action, which shall be published in the

 

newsletter published under subsection (3).

 

     Sec. 63. (1) Information reported to or otherwise obtained by

 

the department of labor or the department of public health,

 

licensing and regulatory affairs in connection with an inspection,

 

investigation, or proceeding under this act that contains or that

 

might reveal a trade secret, including information required to be

 

made available under sections 14a through 14l and section 24(9) and

 

(10), 24(5) and (6) shall be considered confidential. In a

 

proceeding under this act, the department of public health director

 

shall promulgate rules for the purpose of protecting trade secrets

 

regarding information required to be made available under sections

 

14a through 14l and section 24(9) and (10), 24(5) and (6), and the

 

appropriate department, the board, or the court shall issue orders

 

as may be appropriate to protect the confidentiality of trade

 

secrets and to carry out the objectives of this act.

 

     (2) Except as otherwise provided by this subsection and

 

subsection (1), information reported to or otherwise obtained by a

 

department from an employee in connection with an inspection,

 

investigation, or proceeding under this act shall be made available

 

to the public pursuant to the freedom of information act, Act No.

 

442 of the Public Acts of 1976, as amended, being sections 15.231

 

to 15.246 of the Michigan Compiled Laws. 1976 PA 442, MCL 15.231 to

 

15.246. The identity of an employee or any information that may

 

lead to the identification of an employee who provides information

 

pertaining to a possible violation or violations of this act shall

 

be is exempt from disclosure.

 

     Enacting section 1. Section 23 of the Michigan occupational

 

safety and health act, 1974 PA 154, MCL 408.1023, is repealed.

 

     Enacting section 2. This amendatory act does not take effect

 

unless all of the following bills of the 96th Legislature are

 

enacted into law:

 

     (a) House Bill No. 5922.           

 

                

 

     (b) House Bill No. 5917.            

 

         

 

     (c) Senate Bill No. 1335.