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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY GIBBONS, CALTAGIRONE, GOODMAN, JOSEPHS, KULA, MOUL AND M. O'BRIEN, JUNE 8, 2011 |
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| REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, JUNE 8, 2011 |
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| AN ACT |
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1 | Providing for public employee occupational health and safety, |
2 | for standards and procedures and for further duties of the |
3 | Department of Labor and Industry; establishing the Public |
4 | Employee Occupational Safety and Health Review Board and |
5 | providing for its powers and duties; and providing for the |
6 | establishment of various advisory committees, for enforcement |
7 | and for civil and criminal penalties. |
8 | TABLE OF CONTENTS |
9 | Chapter 1. Preliminary Provisions |
10 | Section 101. Short title. |
11 | Section 102. Declaration of policy. |
12 | Section 103. Definitions. |
13 | Chapter 3. Public Employee Health and Safety |
14 | Section 301. Application of health and safety standards. |
15 | Section 302. Duties of public employers. |
16 | Section 303. Powers and duties of department. |
17 | Section 304. Advisory committee. |
18 | Section 305. Work environment inspectors. |
19 | Section 306. Work environment committees. |
20 | Section 307. Inspections. |
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1 | Section 308. Recordkeeping. |
2 | Section 309. Adverse action against employees. |
3 | Section 310. Right to work under safe conditions. |
4 | Section 311. Asbestos abatement. |
5 | Section 312. Public Employee Occupational Safety and Health |
6 | Review Board. |
7 | Section 313. Variances. |
8 | Chapter 5. Enforcement |
9 | Section 501. Enforcement orders. |
10 | Section 502. Imminent danger. |
11 | Section 503. Citations. |
12 | Section 504. Notice of penalty. |
13 | Section 505. Proceedings by department. |
14 | Section 506. Injunctive relief. |
15 | Section 507. Failure of secretary to act. |
16 | Section 508. Follow-up inspection. |
17 | Section 509. Penalties. |
18 | Section 510. Civil actions. |
19 | Chapter 11. Miscellaneous Provisions |
20 | Section 1101. Effective date. |
21 | The General Assembly of the Commonwealth of Pennsylvania |
22 | hereby enacts as follows: |
23 | CHAPTER 1 |
24 | PRELIMINARY PROVISIONS |
25 | Section 101. Short title. |
26 | This act shall be known and may be cited as the Public |
27 | Employee Occupational Safety and Health Act. |
28 | Section 102. Declaration of policy. |
29 | The General Assembly finds and declares as follows: |
30 | (1) It is a basic right of all employees to work in an |
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1 | environment that is as free from hazards and risks to their |
2 | safety and health as possible. This right should be afforded |
3 | to public employees, who should not be exposed to workplace |
4 | hazards any more than private sector employees. |
5 | (2) A significant percentage of employees in this |
6 | Commonwealth are employed by the Commonwealth or by one of |
7 | its political subdivisions. Many of these public employees |
8 | perform job functions comparable to those performed by |
9 | workers in the private sector. |
10 | (3) A safe place in which to work is economically |
11 | advantageous to employers. Work-related accidents and |
12 | injuries, and the absences caused thereby, decrease employee |
13 | productivity and increase workers' compensation costs. Unsafe |
14 | workplaces increase the risk of financial liability for |
15 | injuries to members of the public who frequent public |
16 | buildings. Occupational illnesses deplete the pool of human |
17 | resources and increase medical expenditures. For public |
18 | employees and their dependents, occupational accidents and |
19 | illnesses pose a serious threat to finances, security and |
20 | mental and physical well-being. |
21 | (4) Greater protection of the health and safety of |
22 | public employees will assist government bodies to deliver |
23 | needed public services in a safe, efficient and cost- |
24 | effective manner. |
25 | (5) Under the Occupational Safety and Health Act of 1970 |
26 | (Public Law 91-596, 29 U.S.C. § 651 et seq.), Congress deems |
27 | it necessary to protect the safety and health of workers |
28 | employed in the private sector. The OSHA Act was enacted to |
29 | "assure so far as possible every working man and woman in the |
30 | Nation safe and healthful working conditions and to preserve |
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1 | our human resources." To provide at least as much protection |
2 | to public employees as is provided to employees in the |
3 | private sector by the OSHA Act, the standards and regulations |
4 | under the OSHA Act should be adopted and applied to public |
5 | employees. Accordingly, the General Assembly hereby exercises |
6 | its statutory authority to establish and enforce rules, |
7 | standards and regulations protecting the health and safety of |
8 | all employees of this Commonwealth and its political |
9 | subdivisions. |
10 | (6) Swift and effective enforcement of the provisions of |
11 | this act is vital to ensure that the health and safety of |
12 | public employees is protected. |
13 | Section 103. Definitions. |
14 | The following words and phrases when used in this act shall |
15 | have the meanings given to them in this section unless the |
16 | context clearly indicates otherwise: |
17 | "Adverse action." Any action by an employer which adversely |
18 | affects a worker with respect to any terms or conditions of |
19 | employment or opportunity for promotion. The term includes, but |
20 | is not limited to, the action of dismissal, layoff, suspension, |
21 | demotion, transfer of job or location, reduction in wages, |
22 | changes in hours or conditions of work or reprimand. |
23 | "Advisory committee." The Public Employee Safety and Health |
24 | Advisory Committee. |
25 | "Authorized employee representative." An employee authorized |
26 | by the employees to represent them, or the designated |
27 | representative of an employee organization recognized or |
28 | certified to represent the employees. The term includes "employe |
29 | organization" as defined in section 301(3) of the act of July |
30 | 23, 1970 (P.L.563, No.195), known as the Public Employe |
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1 | Relations Act. |
2 | "Board." The Public Employees Occupational Safety and Health |
3 | Review Board established in section 312. |
4 | "Committee." A work environment committee. |
5 | "Department." The Department of Labor and Industry of the |
6 | Commonwealth. |
7 | "Harmful agent." A substance or condition determined by the |
8 | department to present a risk to worker health or safety or to |
9 | present imminent danger of death or serious physical harm to a |
10 | public employee. The term includes, but is not limited to, |
11 | radiation (whether ionizing or nonionizing), heat, cold, noise, |
12 | vibration, repetitive motion, hypobaric pressure, hyperbaric |
13 | pressure, poor illumination, poor ergonomic design, dust, fumes, |
14 | biological hazards such as molds and allergens, inadequate |
15 | ventilation and indoor air pollution. The department shall |
16 | consult the scientific literature and rely on epidemiologic and |
17 | case study reports brought to its attention in making such |
18 | determinations for agents which are not generally recognized as |
19 | harmful agents. |
20 | "Hazardous substance." Any chemical or mixture defined as |
21 | hazardous under section 3 of the act of October 5, 1984 |
22 | (P.L.734, No.159), known as the Worker and Community Right-to- |
23 | Know Act, and any other substance determined to be hazardous by |
24 | the secretary. The secretary shall consult the scientific |
25 | literature and rely on epidemiologic and case study reports |
26 | brought to its attention in making such determinations for |
27 | substances not defined as hazardous under the Worker and |
28 | Community Right-to-Know Act. |
29 | "Imminent danger." A hazard or condition which could |
30 | reasonably be expected to cause death or serious physical harm |
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1 | immediately or before the imminence of the danger can be |
2 | eliminated through the enforcement procedure under section 501. |
3 | "Infectious agent." Includes bacteria, viruses, fungi, |
4 | parasites, rickettsia and protozoa determined by the board or |
5 | the secretary to cause substantial acute or chronic illness or |
6 | permanent disability as a direct or indirect result of exposure |
7 | to the infectious agent by employees whose workplaces include, |
8 | but are not limited to, hospitals; morgues; laboratories; |
9 | clinics; prisons; homes or institutions for the aged and the |
10 | mentally, physically or psychologically impaired; schools; day- |
11 | care facilities; shelters, zoos or other animal-handling |
12 | operations; water and waste treatment plants; and those public |
13 | health and social service employees who may be exposed to |
14 | infectious agents in the course of home or office visits. The |
15 | department shall consult the scientific literature and rely on |
16 | epidemiologic and case study reports brought to its attention in |
17 | making such determinations for agents which are not generally |
18 | recognized as infectious agents. |
19 | "Interested person." Includes any affected person; a |
20 | representative of an organization of employers or employees; a |
21 | nationally recognized standards-producing organization; a State |
22 | board, commission or department; a professional organization |
23 | concerned with occupational safety or health; a representative |
24 | or a public interest organization; or a member of a department |
25 | or college or university engaged in research related to |
26 | occupational safety or health. |
27 | "Occupational safety and health specialist." An individual |
28 | who, because of professional or technical education, training or |
29 | experience, understands the health and safety risks and the |
30 | necessary precautions associated with the hazardous substances, |
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1 | harmful agents, infectious agents and safety hazards which the |
2 | person is hired to address and to which public employees are |
3 | exposed. The department shall promulgate regulations specifying |
4 | criteria for education, training and experience. |
5 | "OSHA." The Occupational Safety and Health Administration. |
6 | "OSHA Act." The Occupational Safety and Health Act of 1970 |
7 | (Public Law 91-596, 29 U.S.C. § 651 et seq.). |
8 | "Public employee." An individual who engages to furnish his |
9 | services subject to the direction and control of a public |
10 | employer. |
11 | "Public employer." The Commonwealth and its political |
12 | subdivisions, including school districts, and any office, board, |
13 | commission, authority, agency or instrumentality thereof; any |
14 | multistate authority; any regional transportation authority; or |
15 | anyone contracting to perform services for the Commonwealth or |
16 | any political subdivision or instrumentality thereof whose |
17 | employees are not protected by the OSHA Act. |
18 | "Recognized hazard." Any hazardous substance, harmful agent, |
19 | infectious agent or safety hazard as defined in this act. |
20 | "Right-to-Know Act." The act of October 5, 1984 (P.L.734, |
21 | No.159), known as the Worker and Community Right-to-Know Act. |
22 | "Safety hazard." A hazard that arises out of or is |
23 | encountered in the course of employment and presents a risk to |
24 | employee safety. |
25 | "Secretary." The Secretary of Labor and Industry of the |
26 | Commonwealth. |
27 | "Work environment inspector." An occupational safety and |
28 | health specialist hired for the purpose of enforcing the |
29 | provisions of this act. |
30 | "Workplace." A building site, structure, mobile vehicle or |
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1 | other premises or location, whether indoors or outdoors, in |
2 | which an employee is engaged in work. |
3 | CHAPTER 3 |
4 | PUBLIC EMPLOYEE HEALTH AND SAFETY |
5 | Section 301. Application of health and safety standards. |
6 | (a) Application.--This act applies to all public employers, |
7 | public employees and places of public employment in this |
8 | Commonwealth. This act and the regulations promulgated under it |
9 | do not apply to employers whose operations are covered by OSHA |
10 | or to employees of the Federal Government. |
11 | (b) Workers' compensation.--Nothing in this act shall be |
12 | construed to supersede or affect any workers' compensation |
13 | statute or to enlarge, diminish or affect common law or |
14 | statutory rights, duties or liabilities or employers or |
15 | employees with respect to injuries, disease or death of |
16 | employees arising out of and in the course of employment. |
17 | Section 302. Duties of public employers. |
18 | (a) Duties.--A public employer shall do all of the |
19 | following: |
20 | (1) Furnish, to each of its public employees, employment |
21 | and a workplace which are free from recognized hazards that |
22 | cause or may cause death, serious physical harm or illness to |
23 | employees. |
24 | (2) Comply with the safety and health standards |
25 | promulgated under this act. These requirements shall be |
26 | included in all leases of the employer and in all contracts |
27 | with individuals and contractors who provide services to the |
28 | employer. |
29 | (3) Assist the work environment inspector in the |
30 | performance of the inspector's duties by supplying or making |
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1 | available information dealing with exposure reports, general |
2 | safety and health records and other records required by this |
3 | act which are necessary to comply with the purposes and goals |
4 | of this act. |
5 | (4) Provide information to employees, their authorized |
6 | representatives and committee members in the following ways: |
7 | (i) Posting information regarding protections and |
8 | obligations of employees under occupational safety and |
9 | health laws at areas in the workplace that are easily |
10 | accessible to all employees. |
11 | (ii) Posting prominently each citation issued under |
12 | this act, or a copy or copies thereof, at or near each |
13 | place a violation referred to in the notice of violation |
14 | occurred and at areas in the workplace that are easily |
15 | accessible to all employees. |
16 | (iii) Providing timely access to all industrial |
17 | hygiene information and other surveys and reports. |
18 | Whenever a work environment inspector or any other |
19 | representative of the employer is engaged in activities |
20 | related to the monitoring, measuring and other means of |
21 | assessment conducted to assess employee exposure to |
22 | hazards, the inspector or employer representative shall |
23 | be accompanied by employee representatives and committee |
24 | members as provided in section 307(h). |
25 | (iv) Allowing access by employees and their |
26 | representatives to accurate records of employee exposures |
27 | to hazardous substances, infectious agents, harmful |
28 | agents or safety hazards. |
29 | (v) Notifying any employee who has been or is being |
30 | exposed to hazardous materials, harmful agents or |
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1 | infectious agents, and informing any employee so exposed |
2 | of corrective action being taken. |
3 | (vi) Allowing access by employees and their |
4 | representatives to relevant medical records and posting a |
5 | summary of relevant medical data in a timely manner. |
6 | (5) Consulting and working cooperatively with the |
7 | committees at the workplace for the purpose of resolving |
8 | concerns on matters of health, safety and welfare at the |
9 | workplace. Every public employer shall be responsible for |
10 | providing the committee with any information the employer |
11 | receives pursuant to section 5 of the Right-to-Know-Act, and |
12 | also for furnishing any information requested by the |
13 | committee under rights guaranteed in this act. |
14 | (6) Providing education and training for employees |
15 | exposed to hazardous substances, harmful agents, infectious |
16 | agents and safety hazards with respect to the hazardous |
17 | substances, harmful agents, infectious agents and safety |
18 | hazards found in their workplace, pursuant to regulations |
19 | promulgated by the secretary. Employees shall receive normal |
20 | wages and benefits from the employer while attending such |
21 | programs. Additional instruction shall be provided whenever |
22 | the potential for exposure to hazardous substances, harmful |
23 | agents, infectious agents or safety hazards is altered or |
24 | whenever new information is received by the employer |
25 | concerning the hazards of the substances, agents or safety |
26 | hazards. |
27 | (b) Prohibitions.--A public employer shall not: |
28 | (1) Occupy, maintain or permit a public employee to be |
29 | in a workplace that is not free from recognized hazards that |
30 | cause or may cause death, serious physical harm or illness to |
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1 | employees. |
2 | (2) Interfere with an inspection by a work environment |
3 | inspector. |
4 | Section 303. Powers and duties of department. |
5 | (a) Purpose.--The department is charged with the |
6 | responsibility of promulgating and enforcing health and safety |
7 | rules, regulations and standards to protect the health and |
8 | safety of workers covered by this act. |
9 | (b) Powers and duties enumerated.--The powers and duties of |
10 | the department in relation to this act include, but are not |
11 | limited to, the following: |
12 | (1) Taking such action as necessary to enforce this act |
13 | in a prompt and effective manner, including, but not limited |
14 | to, the hiring of personnel. |
15 | (2) Within one year, proposing such rules and |
16 | regulations as necessary to administer and enforce all |
17 | sections of this act. Substantive regulations governing |
18 | exposure levels and work conditions shall be at least as |
19 | effective as OSHA standards addressing the same issues. |
20 | (3) Adopting all standards promulgated by OSHA which are |
21 | in effect on the effective date of this act and adopting all |
22 | standards adopted by OSHA in the future. Interested persons |
23 | may petition the department to adopt additional regulations |
24 | under this paragraph. |
25 | (4) Either alone or in conjunction with the State |
26 | Workers' Insurance Board or the Department of Health, |
27 | preparing and maintaining morbidity and accident statistics |
28 | relating to public employees. |
29 | (5) Providing assistance to persons concerned with |
30 | occupational health and safety and providing services to |
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1 | assist committees, employers and employees in maintaining |
2 | standards for the protection of the health and safety of |
3 | public employees. |
4 | (6) Promoting or conducting studies and research |
5 | projects in connection with problems relating to the health |
6 | and safety of public employees. |
7 | (7) Conducting educational programs, including seminars |
8 | and courses of training for promoting the health and safety |
9 | of public employees and for improving the qualifications of |
10 | persons involved in the promotion of occupational health and |
11 | safety. |
12 | (8) Appointing advisory committees to assist in the |
13 | administration of this act. |
14 | (9) Making grants for any of the purposes mentioned in |
15 | this section. |
16 | (10) Promulgating a plan for the development and |
17 | enforcement of occupational safety and health standards with |
18 | respect to public employers and employees. |
19 | (11) Adopting health and safety standards and |
20 | promulgating rules and regulations for hazardous substances, |
21 | harmful agents, infectious agents and safety hazards, which |
22 | shall include, but not be limited to, standards and |
23 | regulations which have been enacted or proposed by OSHA or |
24 | other Federal governmental agencies. Interested persons may |
25 | petition the secretary to adopt standards and promulgate |
26 | regulations under this paragraph. |
27 | (12) In the event of an emergency or unusual situation, |
28 | providing for an emergency temporary standard to take |
29 | immediate effect upon publication in newspapers of general |
30 | circulation in Philadelphia, Pittsburgh, Harrisburg, Wilkes- |
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1 | Barre, Scranton and Erie, in accordance with 1 Pa. Code § |
2 | 13.74 (relating to effectiveness prior to publication), if |
3 | the department deems that: |
4 | (i) Employees are exposed to grave danger from |
5 | exposure to substances or agents determined to be toxic |
6 | or physically harmful or from new hazards. |
7 | (ii) Such emergency standards are necessary to |
8 | protect employees from such danger. |
9 | Such emergency standards shall be in effect no longer than |
10 | 120 days, or, if renewed in compliance with this section, not |
11 | longer than 60 additional days. On or before the expiration |
12 | date of the emergency standards or renewal thereof, the |
13 | department shall promulgate regulations to replace the |
14 | emergency temporary regulations. |
15 | (13) In accordance with 1 Pa. Code Ch. 7 (relating to |
16 | procedure for adoption or change of regulations), |
17 | promulgating such rules and regulations as may be deemed |
18 | necessary to carry out the purposes and responsibilities to |
19 | enforce the provisions of this act. |
20 | (14) Engaging in inspections and investigations and |
21 | taking necessary action to ensure compliance by public |
22 | employers with the provisions of this act and rules, |
23 | regulations and standards established by the secretary. |
24 | (15) Employing assistants, experts, inspectors, hearing |
25 | officers, consultants, occupational safety and health |
26 | specialists, and other employees sufficient to carry out the |
27 | purposes of this act. |
28 | (16) Collecting, maintaining and making available the |
29 | following statistics for each public employer: |
30 | (i) The number of inspections requested. |
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1 | (ii) The number of inspections completed. |
2 | (iii) The number of citations issued and the number |
3 | of violations involved. |
4 | (iv) The number and amount of penalties assessed. |
5 | (17) Promulgating regulations which provide for the |
6 | elimination of all asbestos brakes and clutch facings in all |
7 | vehicles owned, leased or otherwise used by the Commonwealth |
8 | and its political subdivisions in accordance with 40 CFR 763 |
9 | (relating to asbestos). |
10 | (18) Promulgating regulations providing timely access to |
11 | all industrial hygiene and other surveys and reports. Public |
12 | employers shall provide the opportunity for employees and |
13 | their representatives to walk around with work environment |
14 | inspectors and all representatives of the employer engaged in |
15 | activities related to the monitoring, measuring and other |
16 | means of assessment in order to observe monitoring, measuring |
17 | and other means of assessment conducted to assess employee |
18 | exposure to hazards pursuant to standards promulgated under |
19 | this act. |
20 | (19) Promulgating regulations or standards requiring |
21 | proper work procedures, employee training and provision of |
22 | any necessary vaccinations or inoculations at employer |
23 | expense for any employee regularly exposed to infectious |
24 | diseases in the course of his employment. |
25 | (20) Promulgating advisory recommendations for the |
26 | establishment of safe numbers of firefighters assigned to |
27 | each firefighting rig or apparatus to insure the public |
28 | safety and protect the health and lives of the employees |
29 | performing those services. The secretary shall appoint a |
30 | five-member Firefighters Safety Advisory Committee comprised |
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1 | of members knowledgeable in fire safety, including two |
2 | members from affected bargaining units who have been |
3 | designated by the relevant employee representative, for the |
4 | purpose of developing such advisory recommendations which |
5 | will insure the safety of firefighting personnel covered by |
6 | this act. Before making its advisory recommendations, the |
7 | committee shall consider such factors as community size, |
8 | population and building patterns. The committee shall make |
9 | its advisory recommendations and deliver its final report not |
10 | later than one year after the effective date of this act. |
11 | Section 304. Advisory committee. |
12 | (a) Purpose.--The Public Employee Safety and Health Advisory |
13 | Committee shall be established to provide advice and assistance |
14 | to the department in fulfilling its responsibilities to |
15 | administer and enforce this act. |
16 | (b) Duties enumerated.--The advisory committee shall: |
17 | (1) Recommend standards, rules and regulations for |
18 | promulgation by the secretary. |
19 | (2) Review all standards, rules and regulations proposed |
20 | by the secretary pursuant to section 303. |
21 | (3) Review records kept by the secretary in accordance |
22 | with section 303. |
23 | (4) Take up such other matters as it deems appropriate. |
24 | (c) Membership.--The advisory committee shall consist of 20 |
25 | members appointed by the Governor for a term of four years each. |
26 | One member shall be appointed from each of the following |
27 | categories: fire service, fire service employees, |
28 | municipalities, municipal employees, county governments, county |
29 | government employees, State government, State government |
30 | employees, correctional institutions, correctional institution |
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1 | employees, local school boards, local school board employees, |
2 | law enforcement, law enforcement employees, State hospitals and |
3 | State hospital employees. Four members shall represent the |
4 | public. The advisory committee shall select a chairperson from |
5 | its own members, who shall serve a two-year term. Members shall |
6 | be selected on the basis of their experience and competence in |
7 | the field of occupational safety and health. In appointing |
8 | employee members of the advisory committee, the Governor shall |
9 | select these members from a list of candidates submitted by the |
10 | relevant collective bargaining agent. |
11 | (d) Meetings.--The advisory committee shall meet at least |
12 | every two months. |
13 | (e) Compensation and expenses.--The members of the advisory |
14 | committee shall serve without compensation but shall be entitled |
15 | to reimbursement for reasonable and necessary expenses, in |
16 | accordance with the rules of the Executive Board. |
17 | Section 305. Work environment inspectors. |
18 | (a) Appointment.--The department shall appoint work |
19 | environment inspectors to ensure that the provisions of this act |
20 | are adequately enforced. Hiring and employment of inspectors |
21 | shall be accomplished and conducted in accordance with the |
22 | applicable provisions of the act of August 5, 1941 (P.L.752, |
23 | No.286), known as the Civil Service Act. |
24 | (b) Duties.--Under the direction of the department, the |
25 | duties of inspectors shall include, but not be limited to, the |
26 | following: |
27 | (1) At any time, with or without prior notification, to |
28 | enter and inspect any premises or workplace and take any |
29 | samples and photographs and make any examinations the |
30 | inspector considers necessary to accomplish the purposes and |
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1 | goals of this act. In the event that entry is denied, the |
2 | inspector shall notify the department, which may compel such |
3 | entry through the appropriate legal process. The department |
4 | may secure an order compelling entry by petitioning the |
5 | Commonwealth Court to grant such petition upon a showing that |
6 | entry has been denied. |
7 | (2) To require the employer to produce, for inspection |
8 | by the work environment inspector, books, records, documents |
9 | or any other material maintained by the employer, to assist |
10 | the inspector in making determinations and in enforcing this |
11 | act. |
12 | (3) To conduct private interviews with, or solicit |
13 | statements from, employees. |
14 | (4) To perform all other duties as authorized by the |
15 | secretary. |
16 | (c) Cooperation.--Work environment inspectors shall |
17 | cooperate with the work environment committees. |
18 | Section 306. Work environment committees. |
19 | (a) Purpose and establishment.--To best assure that the |
20 | health and safety of the public employees of this Commonwealth |
21 | are protected, work environment committees, consisting of |
22 | representatives of employees and employers, shall be established |
23 | under this section. Nothing in this section shall diminish the |
24 | employer's responsibility to assure a safe and healthful work |
25 | environment. |
26 | (b) Formation.--An employer, except as provided in |
27 | subsection (c), shall cause a work environment committee to be |
28 | established: |
29 | (1) at a workplace where at least 50 or more employees |
30 | are regularly employed; and |
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1 | (2) at an individual workplace or at classes of |
2 | workplaces which the department may designate. |
3 | (c) Exemption.--Public employers employing more than 400 |
4 | employees who are covered by this act and who are employed at |
5 | more than 15 workplaces maintained by the employer may apply to |
6 | the department for a modification from the requirements of |
7 | subsections (a) and (b). It shall be the employer's |
8 | responsibility to submit to the department for approval an |
9 | alternative plan for the formation of work environment |
10 | committees, which plan shall otherwise conform to the intent of |
11 | this section. In considering the alternative plan of an |
12 | employer, the department shall solicit and consider evaluations |
13 | of the plan from the authorized employee representative. |
14 | (d) Small units.--Public employers who employ fewer than 50 |
15 | employees, regardless of the number of workplaces maintained by |
16 | the employer, shall designate one employee-selected member and |
17 | one employer-selected member as work environment |
18 | representatives. The work environment representative designated |
19 | by the employees shall represent employees of the employer |
20 | employed at all workplaces. |
21 | (e) Membership.-- |
22 | (1) A work environment committee shall consist of not |
23 | less than four nor more than 12 persons as follows: |
24 | (i) For 25 through 100 employees - 4 members. |
25 | (ii) For 101 through 400 employees - 6 members. |
26 | (iii) For each 100 employees beyond 400 - 2 |
27 | additional members. Additional members under this |
28 | subparagraph may not exceed 12. |
29 | (2) Membership shall be equally divided between |
30 | employee-selected members and employer-selected members. |
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1 | (3) Public employee members of work environment |
2 | committees shall be appointed by the employee organizations |
3 | for the employees at the workplace. If there is more than one |
4 | bargaining agent, employee members shall be selected from the |
5 | three largest bargaining agents in accordance with |
6 | regulations promulgated by the department. If there is no |
7 | employee organization, the public employees shall directly |
8 | elect the members of the committee. |
9 | (4) The employer shall post prominently in the workplace |
10 | the names of all committee members. |
11 | (5) The number of members of a work environment |
12 | committee may be altered by agreement between an employer and |
13 | the certified collective bargaining representative of the |
14 | employer's employees. However, in no event shall there be |
15 | less than one employee-selected member and one employer- |
16 | selected member. The provisions of paragraphs (2), (3) and |
17 | (4) shall apply with regard to the size and selection of |
18 | committees. |
19 | (f) Powers and duties.--The powers and duties of work |
20 | environment committees shall include, but not be limited to, the |
21 | following: |
22 | (1) Regularly inspecting the workplace to identify |
23 | hazardous conditions and to check for compliance with the |
24 | general intent of this act and the standards and regulations |
25 | promulgated hereunder. |
26 | (2) Receiving, considering and disposing of concerns and |
27 | complaints respecting the safety and health of the employees. |
28 | (3) Maintaining records in connection with the receipt |
29 | and disposition of concerns and complaints and other |
30 | committee activities. |
|
1 | (4) Investigating imminent danger situations, accidents |
2 | and unusual environmental conditions. |
3 | (5) When it determines that an imminent danger exists, |
4 | ordering the dangerous activity to cease and requesting the |
5 | immediate presence of a work environment inspector. Once |
6 | activity has ceased, it may not resume until the work |
7 | environment inspector deems it safe. An affected party may |
8 | appeal the determination of the work environment inspector to |
9 | the board. In the event the committee is unavailable, both of |
10 | the cochairpersons of the committee may take joint action |
11 | under this paragraph. |
12 | (6) Reviewing health and safety records to monitor |
13 | incidents of accidents and illnesses and to identify problem |
14 | areas. |
15 | (7) Developing and promoting measures to protect the |
16 | safety, health and welfare of individuals in the workplace |
17 | and checking the effectiveness of those measures. |
18 | (8) Cooperating with a work environment inspector |
19 | exercising duties under this act. |
20 | (9) Developing and promoting programs for education and |
21 | information concerning safety and health in the workplace. |
22 | (10) Suffering no loss in pay, benefits or accrual of |
23 | seniority for time spent on committee business. |
24 | (11) Receiving from the public employer, at least 60 |
25 | days in advance of implementation, notice concerning a change |
26 | in workplace technology or process or an introduction into |
27 | the workplace of a hazardous substance, harmful agent, |
28 | infectious agent or safety hazard which has not previously |
29 | been recognized by the work environment committee for that |
30 | workplace. |
|
1 | (12) Developing medical testing for work-related |
2 | illnesses or disabilities which may arise out of or in the |
3 | course of employment, including illnesses or disabilities |
4 | resulting from or contributed to by exposure to hazardous |
5 | substances, harmful agents, infectious agents or safety |
6 | hazards. The department shall promulgate regulations |
7 | necessary to protect the confidentiality of employees. |
8 | (g) Meetings.-- |
9 | (1) Committees shall hold regular meetings at least |
10 | quarterly or as needed as determined by the cochairpersons. |
11 | The meetings of a committee shall be held during ordinary |
12 | working hours unless otherwise agreed upon. Additional |
13 | meetings shall be held as necessary. |
14 | (2) There shall be two committee cochairpersons, one |
15 | selected by employee members of the committee and one |
16 | selected by employer members of the committee. |
17 | (3) Decisions shall be made by a majority of committee |
18 | members present and voting. In case of a deadlock, a work |
19 | environment inspector shall be called in to resolve the |
20 | issue. |
21 | (4) Minutes of all meetings shall be taken, and the |
22 | approval of each cochairperson shall be indicated by |
23 | signature. |
24 | (5) A copy of the minutes shall be posted prominently in |
25 | the workplace. |
26 | (6) Members of committees shall suffer no loss in wages, |
27 | benefits or seniority for time spent on committee business. |
28 | (h) Training.--Every committee member shall be entitled to |
29 | not less than 16 hours of occupational health and safety |
30 | training in the member's first year of service, and additional |
|
1 | training shall be provided no less frequently than biannually in |
2 | subsequent years. Training shall be provided at employer |
3 | expense. The form, nature and location of the training shall be |
4 | approved by the committee. Participating employees shall receive |
5 | their regular rate of pay and benefits while attending such |
6 | training. |
7 | (i) Nonliability.--The bargaining representatives and work |
8 | environment committees, and individual members of such |
9 | committees, shall not be held liable for any work-connected |
10 | injuries, disabilities or diseases which may be incurred by |
11 | employees. |
12 | (j) Work environment representative.-- |
13 | (1) A public employer shall cause an employee to be |
14 | designated as the work environment representative: |
15 | (i) at a workplace where a work environment |
16 | committee is not required but where five or more |
17 | employees are regularly employed; and |
18 | (ii) at an individual workplace or classes of |
19 | workplaces which the board may designate. |
20 | (2) The work environment representative shall be |
21 | appointed by the employee organization recognized or |
22 | certified as the employee representative (bargaining agent) |
23 | for the employees at the workplace. In the event that there |
24 | is more than one bargaining agent, the work environment |
25 | representative shall be appointed by the largest bargaining |
26 | agent. In the absence of a recognized or certified employee |
27 | representative, the employees shall elect the work |
28 | environment representative. The employer shall post |
29 | prominently in the workplace the name of the work environment |
30 | representative. |
|
1 | (3) The work environment representative shall, in |
2 | cooperation with a representative of the employer, perform |
3 | the same duties and have the same powers and rights as set |
4 | out for the work environment committee in subsection (e). |
5 | (4) A work environment representative shall be entitled |
6 | to not less than 16 hours of occupational health and safety |
7 | training in the representative's first year of service and |
8 | additional training shall be provided no less frequently than |
9 | biannually in subsequent years. Training shall be provided at |
10 | employer expense. The form, nature and location of the |
11 | training shall be acceptable to the representative who |
12 | receives it. |
13 | (5) The work environment representative shall not be |
14 | held liable for a work-connected injury, disability or |
15 | disease which may be incurred by an employee. |
16 | Section 307. Inspections. |
17 | (a) Report to work environment committee.--Any employee who |
18 | believes that a violation of a safety or health standard rule or |
19 | regulation exists, or that there is a threat of harm to an |
20 | employee's health or safety, shall report such violation or |
21 | threat of harm to the work environment committee. Within three |
22 | working days of the receipt of such report, the work environment |
23 | committee shall determine whether a violation or threat of harm |
24 | exists, and upon such determination, recommend to the public |
25 | employer corrective actions which will eliminate the violation |
26 | or threat of harm. The work environment committee may also |
27 | exercise its authority under section 306 when it determines such |
28 | action is necessary. Nothing in this subsection shall preclude |
29 | the work environment committee from requesting an inspection by |
30 | the department. |
|
1 | (b) Request for inspection.--Any employee who believes that |
2 | the violation or threat of harm still exists after the work |
3 | environment committee's review and action by the public employer |
4 | may request an inspection by the department by giving notice to |
5 | the department of the violation or threat of harm. |
6 | (c) Manner of request.--Requests for inspections may be made |
7 | orally or in writing and shall set forth the grounds for the |
8 | request. The department shall, upon request of the complaining |
9 | party, keep confidential the name of the person making the |
10 | complaint. |
11 | (d) Action on request.--Whenever the department receives a |
12 | request for inspection of an imminent danger or where the |
13 | department is aware of the likelihood of an imminent danger, an |
14 | inspection shall be made immediately. In all other cases, |
15 | inspections shall be made as soon as possible, but at least |
16 | within 72 hours, if the department determines there are |
17 | reasonable grounds to believe that a recognized hazard exists. |
18 | If the department determines there are no reasonable grounds to |
19 | believe that a recognized hazard exists, it shall notify the |
20 | employees or the representative of the employees, in writing, of |
21 | such a determination within five days of a request for an |
22 | inspection. The department shall provide, to the employee's |
23 | representative and to the committee and the employer, a copy of |
24 | the inspection report and any order or agreements made to the |
25 | individual making the complaint. Prior to or during any |
26 | inspection of a workplace, any employees or representatives of |
27 | employees employed in such workplace may notify the department |
28 | or any representative thereof responsible for conducting the |
29 | inspection, in writing, of any violation of this act which they |
30 | have reason to believe exists in such workplace. The department |
|
1 | shall, by regulation, establish procedures for informal review |
2 | of any refusal by its representative to perform an inspection or |
3 | issue a citation with respect to any such alleged violation and |
4 | shall furnish the employees or representative of employees |
5 | requesting such review a written statement of the reasons for |
6 | the department's final disposition of the case. |
7 | (e) Inspection without notice.--Inspections may be made |
8 | without any notice to the employer or the employees. |
9 | (f) Accessibility of locations.--Inspectors of the |
10 | department shall have immediate access to any location in which |
11 | there is a suspected hazard or condition for the purposes of |
12 | conducting an inspection. |
13 | (g) Intermittent inspections.--The department shall make a |
14 | determination as to those occupations and workplaces where there |
15 | is a possibility of health or safety hazards to employees or the |
16 | public and shall conduct regular unannounced inspections of |
17 | these workplaces. |
18 | (h) Escort of inspector.--A representative of the employer |
19 | and an authorized employee representative shall accompany the |
20 | inspector for the entire inspection whenever the inspector |
21 | conducts an inspection in accordance with this act. In addition, |
22 | the work environment committee may designate one committee |
23 | member to accompany the inspector, the representative of the |
24 | employer and the authorized employee representative on any or |
25 | all parts of the inspection which address, but are not limited |
26 | to, work areas and processes of which the committee member or |
27 | committee members have firsthand knowledge. The authorized |
28 | employee representatives and designated committee members shall |
29 | attend all opening, interim and closing conferences pertaining |
30 | to the inspection. Authorized employee representatives and |
|
1 | committee members shall receive full employment benefits for all |
2 | time spent on such activities. |
3 | (i) Inspection regardless of complaint.--The authority of |
4 | the department to inspect a premises pursuant to an employee |
5 | complaint shall not be limited to the alleged violation |
6 | contained in the complaint. The department may inspect any other |
7 | areas of the premises. |
8 | (j) Inspection of public employer's premises.--The |
9 | department may, upon its own initiative, conduct an inspection |
10 | of any premises occupied by a public employer. |
11 | (k) Subpoena.--In making inspection and investigations under |
12 | this act, the secretary may require the attendance and testimony |
13 | of witnesses and the production of evidence under oath. |
14 | Witnesses shall be paid the same fees and mileage that are paid |
15 | witnesses in the courts of this Commonwealth. In case of |
16 | contumacy or failure or refusal of a person to obey an order, a |
17 | court of competent jurisdiction shall have jurisdiction to issue |
18 | to the person an order requiring the person to appear to produce |
19 | evidence, if asked, and, when ordered, to give testimony |
20 | relating to the matter under investigation or in question. |
21 | Failure to obey an order of the court may be punishable by the |
22 | court as a contempt. |
23 | Section 308. Recordkeeping. |
24 | (a) Records required.--In accordance with the department's |
25 | regulations, each public employer shall make, keep and preserve, |
26 | and make available to the department, the records regarding its |
27 | activities relating to this act as the department deems |
28 | necessary or appropriate for developing information regarding |
29 | the causes and prevention of occupational accidents and illness. |
30 | The regulations may include provisions requiring public |
|
1 | employers to conduct periodic inspections. The department shall |
2 | also issue regulations requiring that public employers, through |
3 | posting of notices, training or other appropriate means, keep |
4 | their employees informed of their rights to protection. |
5 | (b) Medical problems.--The department shall require public |
6 | employers to maintain accurate records and to make public, |
7 | monthly reports and biannual summaries on a form provided by the |
8 | department of work-related deaths and injuries and illnesses, |
9 | medical treatment, loss of consciousness, assaults on employees, |
10 | restrictions of work or motion, or transfers to other jobs. |
11 | Public employers, the authorized representative of the employees |
12 | and the committee shall, upon request, have the right to examine |
13 | and copy any and all such reports. |
14 | (c) Exposure.--The department shall issue regulations |
15 | requiring employers to maintain accurate records of employee |
16 | exposures to hazardous substances, harmful agents, infectious |
17 | agents or safety hazards. The regulations shall make appropriate |
18 | provisions for each employee or former employee to have access |
19 | to the employee's or former employee's exposure records. These |
20 | requirements shall be at least as effective as those established |
21 | in the Right-to-Know Act. A public employer shall immediately |
22 | notify any public employee who has been or is being exposed to |
23 | hazardous substances, harmful physical agents or infectious |
24 | agents. Public employees exposed to such hazards shall be |
25 | informed by the employer of the corrective action proposed and |
26 | the time limit for implementation, and shall immediately be |
27 | scheduled for participation in the medical surveillance program. |
28 | Section 309. Adverse action against employees. |
29 | (a) Prohibition.--No adverse action shall be taken against |
30 | any public employee: |
|
1 | (1) by reason of the employee's participation in or |
2 | association with any functions of a committee; |
3 | (2) by reason of the employee's inquiry about or |
4 | utilization of any rights or responsibilities the employee |
5 | may have under this act; or |
6 | (3) for any other reason having to do with exercising |
7 | any rights granted under this act. |
8 | (b) Presumption.--Where an adverse action is taken against |
9 | any employee who has, in the prior six months, in any way been |
10 | involved with the enforcement or protection of any rights |
11 | granted under this act, it shall be presumed that the action was |
12 | taken in violation of this act, and it shall be the burden of |
13 | the employer to prove that the action was not taken for improper |
14 | reasons described in subsection (a) or for reasons otherwise |
15 | contrary to the policies and provisions of this act. |
16 | (c) Complaints.--An employee who believes that adverse |
17 | action has been taken against the employee in violation of this |
18 | act may, within 180 days after the employee becomes aware of |
19 | such action, file a complaint with the department alleging the |
20 | adverse action. Upon receipt of the complaint, the department |
21 | shall, within 30 days of receipt of such complaint, make an |
22 | investigation and shall, if requested, withhold the name of the |
23 | complainant from the employer. Whenever the department |
24 | determines that this act has been violated, it shall bring an |
25 | action in Commonwealth Court against the employer alleged to |
26 | have violated this act. In the event of a finding of adverse |
27 | action, the employer shall: |
28 | (1) Cease the adverse action and reinstate the employee |
29 | to the employee's former employment without loss of pay, |
30 | contractual and noncontractual rights, or benefits. |
|
1 | (2) Pay to the worker any wages and benefits the worker |
2 | would have earned had the worker not had adverse action taken |
3 | against him. |
4 | (3) Remove any reprimand or other reference to the |
5 | matter from the employer's records on the employee. |
6 | Section 310. Right to work under safe conditions. |
7 | (a) General rule.-- |
8 | (1) A public employee may not be compelled to work at a |
9 | workplace if all of the following apply: |
10 | (i) A reasonable individual would believe, in good |
11 | faith, that performing assigned work at the workplace |
12 | would involve a danger of death or serious injury or |
13 | illness. |
14 | (ii) The public employee is unable to obtain |
15 | correction of the condition by the employer. |
16 | (iii) There is insufficient time to eliminate the |
17 | danger through resort to regular statutory or contractual |
18 | enforcement procedures. |
19 | (2) In addition, a public employee may not be compelled |
20 | to work at a workplace or to perform a specific assignment, |
21 | if the work environment committee has exercised its authority |
22 | under section 306. |
23 | (3) If paragraph (1) or (2) applies, a public employee |
24 | may refuse to perform assigned duties in the workplace until |
25 | the work environment inspector has investigated the matter |
26 | and advised the employee in writing that a hazard no longer |
27 | exists. |
28 | (b) Temporary assignments.--Notwithstanding any other |
29 | provision of this act, temporary assignment to alternative work |
30 | shall be at no loss of pay, benefits, or contractual or |
|
1 | noncontractual rights to the employee until the matter mentioned |
2 | in subsection (a) is resolved, and shall be deemed not to |
3 | constitute adverse action within the meaning of this act. |
4 | Section 311. Asbestos abatement. |
5 | (a) Program establishment.--The department shall establish |
6 | an asbestos abatement program as described in this section. |
7 | (b) Duties of public employers.--Public employers shall, |
8 | within 18 months from the effective date of this act, perform |
9 | the following: |
10 | (1) Conduct building inspections to determine the |
11 | presence of asbestos hazards in the workplace. Inspections |
12 | shall be conducted by OSHA specialists. |
13 | (2) Maintain records of findings. |
14 | (3) Notify the public employees, authorized employee |
15 | representatives and committees of the results of the |
16 | inspection and release to these individuals and groups the |
17 | records from the inspections. Members of the public shall |
18 | have access to the records of inspections of public |
19 | buildings. |
20 | (c) Abatement plan.--Where asbestos exists in a facility, |
21 | the public employer shall file an asbestos abatement plan with |
22 | the department within 30 months of the effective date of this |
23 | act. This plan shall conform to the practices recommended by the |
24 | Environmental Protection Agency for abatement of asbestos. |
25 | Section 312. Public Employee Occupational Safety and Health |
26 | Review Board. |
27 | (a) Establishment.--There is hereby established an |
28 | administrative board within the department, to be known as the |
29 | Public Employee Occupational Safety and Health Review Board. The |
30 | board shall consist of five members appointed by the Governor |
|
1 | from among persons who, by reason of training, education or |
2 | experience, are qualified to carry out the functions of the |
3 | board under this section. Two of the members must be sensitive |
4 | to the interests of public employees and shall be appointed by |
5 | the Governor from among ten candidates submitted by the |
6 | President of the Pennsylvania AFL-CIO. Two of the members must |
7 | be sensitive to the interests of public employers and shall be |
8 | appointed from a list of ten candidates submitted by the |
9 | Pennsylvania Local Government Conference. The Governor shall |
10 | designate one of the members to serve as chairman of the board. |
11 | (b) Terms.--The initial chairman, appointed by the Governor, |
12 | shall serve a term of five years. Thereafter, a chairman shall |
13 | be elected by the members for a term of four years. Two of the |
14 | initial appointees shall serve terms of two years, one of the |
15 | initial appointees shall serve a term of three years, and one of |
16 | the initial appointees shall serve a term of four years. |
17 | Appointments after initial appointments shall be for terms of |
18 | four years. |
19 | (c) Meetings.--The board shall hold monthly meetings and |
20 | additional meetings as it deems necessary. A majority of the |
21 | board shall constitute a quorum for the transaction of business. |
22 | Special meetings of the board shall be called upon reasonable |
23 | notice by the chairman or by any two members of the board. |
24 | (d) Hearings and regulations.--The board shall hear and rule |
25 | on appeals from citations, notifications and penalties issued |
26 | under this act. Hearings and appeals from decisions of the board |
27 | shall be as provided in 2 Pa.C.S. (relating to administrative |
28 | law and procedure). |
29 | (e) Staff.--The board may employ a secretary, administrative |
30 | law judges and other employees as necessary. |
|
1 | (f) Compensation.-- |
2 | (1) The chairman and members of the board shall be paid |
3 | a salary to be established by the Executive Board. |
4 | (2) Except as set forth in paragraph (1), the salaries, |
5 | compensation or wages of employees of the board shall be |
6 | determined by the board. |
7 | (g) Expenses.--The members or employees of the board shall |
8 | be reimbursed for necessary expenses incurred in the performance |
9 | of their duties. |
10 | (h) Hearings.-- |
11 | (1) Hearings authorized by this section shall be |
12 | conducted by an administrative law judge appointed by the |
13 | board to serve in its place. The administrative law judge may |
14 | be a full-time employee, may serve by contract or may be paid |
15 | on a per diem basis, at the discretion of the board. |
16 | (2) An administrative law judge appointed by the board |
17 | shall hear and make a determination upon proceedings |
18 | instituted before the board and upon motions in connection |
19 | with a proceeding assigned to the administrative law judge by |
20 | the chairman of the board and shall make a report of a |
21 | determination, which constitutes the administrative law |
22 | judge's final disposition of the proceedings. The report of |
23 | the administrative law judge shall become the final order of |
24 | the board within 30 days after the report is issued unless, |
25 | within that period, a board member has directed that the |
26 | report shall be reviewed by the board. |
27 | (3) In the conduct of hearings, the board or |
28 | administrative law judge may subpoena and examine witnesses, |
29 | require the production of evidence, administer oaths and take |
30 | testimony and depositions. |
|
1 | (4) After hearing an appeal, the board may sustain, |
2 | modify or dismiss a citation or penalty. |
3 | (5) The rules or procedures prescribed by the board |
4 | shall provide affected employees or representatives of |
5 | affected employees an opportunity to participate as parties |
6 | to hearings under this subsection. |
7 | Section 313. Variances. |
8 | (a) Application.--A public employer may apply to the |
9 | department for a temporary order granting an exception from a |
10 | standard promulgated under this act. The temporary order may be |
11 | granted only if the employer files an application which meets |
12 | the requirements of this section and establishes that the public |
13 | employer: |
14 | (1) Is unable to comply with a standard by its effective |
15 | date because of the unavailability of professional or |
16 | technical personnel or of materials and equipment needed to |
17 | come into compliance with the standard or because necessary |
18 | construction or alteration of facilities cannot be completed |
19 | by the effective date. |
20 | (2) Is taking all available steps to safeguard employees |
21 | against the hazards covered by the standard. |
22 | (3) Has an effective program for coming into compliance |
23 | with the standard as quickly as possible. |
24 | (b) Temporary orders.--A temporary order issued under this |
25 | section shall prescribe the practices, means, methods, |
26 | operations and processes which the employer must adopt and use |
27 | while the order is in effect and state in detail compliance |
28 | requirements. The temporary order may be granted only after |
29 | notice to employees, employee representatives and the committee, |
30 | and after an opportunity for a hearing. The department may, |
|
1 | however, issue one interim order, to be effective until a |
2 | decision is made on the basis of the hearing. A temporary order |
3 | shall be in effect for as long as the period needed by the |
4 | employer to achieve compliance with the standard, or for one |
5 | year, whichever is shorter. An order may be renewed, not more |
6 | than twice, if the requirements of this section are met and if |
7 | an application for renewal is filed at least 90 days prior to |
8 | the expiration date of the order. An interim renewal of an order |
9 | shall remain in effect no longer than 180 days. |
10 | (c) Contents of application for temporary order.--An |
11 | application for a temporary order shall contain all of the |
12 | following: |
13 | (1) A specification of the standard, or portion thereof, |
14 | from which the employer or owner seeks a variance. |
15 | (2) A representation by the employer, supported by |
16 | representations from qualified persons who have firsthand |
17 | knowledge of the facts represented, that the employer is |
18 | unable to comply with the standard, or portion thereof, and a |
19 | detailed statement of the reasons therefor. |
20 | (3) A statement of the steps the employer has taken and |
21 | will take, with dates specified, to protect employees against |
22 | the hazard covered by the standard. |
23 | (4) A statement of when the employer expects to be able |
24 | to comply with the standard and what steps the employer has |
25 | taken and will take, with dates specified, to come into |
26 | compliance with the standard. |
27 | (5) A certification that the employer has informed its |
28 | employees of the application: |
29 | (i) by giving a copy of the application to their |
30 | authorized representative and to the committee; |
|
1 | (ii) by posting a statement giving a summary of the |
2 | application and specifying where a copy may be examined |
3 | at the place or places where notices to employees are |
4 | normally posted; and |
5 | (iii) by other appropriate means. |
6 | A description of how employees have been informed shall be |
7 | contained in the certification. The information to employees |
8 | shall also inform them of their right to petition the board |
9 | for a hearing. |
10 | (d) Variance rule.--Affected public employees shall be given |
11 | notice of each application for a variance and an opportunity to |
12 | participate in a hearing. The department shall issue an order if |
13 | it determines, on the record, after opportunity for an |
14 | inspection, where appropriate, and a hearing, that the proponent |
15 | of the variance has demonstrated by a preponderance of the |
16 | evidence that the conditions, practices, means, methods, |
17 | operations or processes used or proposed to be used by an |
18 | employer will provide employment and workplaces which are as |
19 | safe and healthful as those which would prevail if he complied |
20 | with the standard. The order shall prescribe the conditions the |
21 | employer must maintain and the practices, means, methods, |
22 | operations and processes which the employer must adopt and |
23 | utilize to the extent they differ from the standard in question. |
24 | At any time after six months from its issuance and in the manner |
25 | prescribed for its issuance under this section, an order may be |
26 | modified or revoked upon application by an employer, any |
27 | employee or employee representative, or by the board on its own |
28 | motion. |
29 | (e) Limitation of action.--A person who may be adversely |
30 | affected by an order issued under this act may challenge the |
|
1 | validity or applicability of the order within 120 days from the |
2 | date of issuance, as provided in section 310. |
3 | CHAPTER 5 |
4 | ENFORCEMENT |
5 | Section 501. Enforcement orders. |
6 | If a work environment inspector determines that an employer |
7 | has violated this act, or a health or safety standard or |
8 | regulation promulgated under this act, the department shall, |
9 | within seven days, issue to the employer a citation, which shall |
10 | describe particularly the nature of the violation, including a |
11 | reference to the provision of this act or the standard, |
12 | regulation or order alleged to have been violated, and any |
13 | corrective action required. The department shall fix a |
14 | reasonable time for compliance, not to exceed 72 hours, unless |
15 | the employer can demonstrate to the board that the violation |
16 | cannot be remedied within that time. |
17 | Section 502. Imminent danger. |
18 | If a work environment inspector concludes that an activity |
19 | being carried on or scheduled to commence involves or will |
20 | involve a risk of serious personal injury or harm and that the |
21 | risk of such injury or harm is imminent, the inspector shall |
22 | require that the work cease. The inspector may stop work-related |
23 | and non-work-related activities in the vicinity of the imminent |
24 | danger if such action is needed to protect the health and safety |
25 | of other persons. If, upon inspection, the work environment |
26 | inspector finds an imminent danger to exist, the inspector shall |
27 | order the immediate abatement of the dangerous situation. Before |
28 | the employer may recommence the activity, the inspector must |
29 | certify that the employer has come into compliance with this |
30 | act. |
|
1 | Section 503. Citations. |
2 | (a) Posting of citation.--Whenever the department issues a |
3 | citation to an employer, the employer shall post the citation or |
4 | a copy of the citation in a conspicuous place, at or near each |
5 | place of violation cited in the citation, where it is clearly |
6 | visible to the affected employees. The department shall furnish |
7 | copies of such citation to employee representatives and to the |
8 | committee. |
9 | (b) Notice of citation.--If, after inspection or |
10 | investigation, the department issues a citation, it shall, |
11 | within a reasonable time after the termination of the inspection |
12 | or investigation, notify the employer by certified mail of the |
13 | penalty, if any, proposed to be assessed under section 509. |
14 | Notification shall inform the employer that it has 15 working |
15 | days from the receipt of notice within which to notify the |
16 | department that it wishes to contest the citation or proposed |
17 | assessment of penalty. If the employer fails to notify the |
18 | department within 15 days and if no notice is filed by an |
19 | employee or representative of employees under subsection (a) |
20 | within 15 days, the citation and assessment, as proposed, shall |
21 | be deemed a final order of the board and not subject to review |
22 | by a court or agency. |
23 | Section 504. Notice of penalty. |
24 | If the department has reason to believe that an employer has |
25 | failed to correct the violation for which a citation has been |
26 | issued within the period permitted for correction, it shall |
27 | notify the employer by certified mail of the failure and of the |
28 | penalty proposed to be assessed under section 509 because of |
29 | such failure. In the case of a review proceeding initiated by |
30 | the employer under this chapter in good faith and not solely for |
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1 | delay or the avoidance of penalties, the period permitted for |
2 | correction of the violation shall not begin to run until the |
3 | entry of a final order by the board. Notification by the |
4 | department shall inform the employer that it has 15 working days |
5 | from receipt of notice within which to notify the department |
6 | that it wishes to contest the notification or the proposed |
7 | assessment of the penalty. If, within 15 days from receipt of |
8 | notification under this section, the employer fails to notify |
9 | the department that it intends to contest the notification or |
10 | proposed assessment of penalty, the notification and assessment |
11 | as proposed shall be deemed a final order of the board and not |
12 | subject to review by court or agency. |
13 | Section 505. Proceedings by department. |
14 | If the time for compliance with an order or citation of the |
15 | board has elapsed and the employer has not complied with the |
16 | order or citation, the department shall commence a proceeding in |
17 | Commonwealth Court to enforce the order and shall levy |
18 | additional fines and penalties under section 509. |
19 | Section 506. Injunctive relief. |
20 | Commonwealth Court may, upon petition of the department or |
21 | any affected party, restrain any conditions or practices in any |
22 | place of public employment which could be expected to cause |
23 | death or physical harm. An order issued under this section may |
24 | require such steps to be taken as may be necessary to avoid, |
25 | correct or remove an imminent danger and to prohibit the |
26 | employment or presence of an individual in locations or under |
27 | conditions where an imminent danger exists, except individuals |
28 | whose presence is necessary to avoid, correct or remove the |
29 | imminent danger or to maintain the capacity of a continuous |
30 | process operation to resume normal operations without a complete |
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1 | cessation of operations, or, where a cessation of operations is |
2 | necessary, to permit it to be accomplished in a safe and orderly |
3 | manner. |
4 | Section 507. Failure of secretary to act. |
5 | Whenever the department fails to seek relief under this |
6 | chapter within five days of being notified of such condition, |
7 | any employee who may be injured by reason of the failure, or the |
8 | authorized employee representative of such employee or the |
9 | committee, may seek injunctive relief, as provided in this |
10 | section, or any other appropriate remedies. In the event that |
11 | such an action is successful, the employer shall pay the costs |
12 | and legal fees of the petitioning parties. |
13 | Section 508. Follow-up inspection. |
14 | If, at the time of or after inspection or investigation, the |
15 | department issues a citation for a violation, the department |
16 | shall conduct a reinspection at the end of the period fixed for |
17 | abatement of the violation. A public employer shall not be given |
18 | advance warning of a reinspection by the department. |
19 | Section 509. Penalties. |
20 | (a) Civil penalties.--The department may assess the |
21 | penalties set forth in this subsection, giving due consideration |
22 | to the appropriateness of the penalty with respect to the size |
23 | of the employer being charged, the gravity of the violation, the |
24 | good faith of the employer and the history of previous |
25 | violations. Penalties collected shall be deposited in a fund |
26 | maintained, administered and distributed by the board for |
27 | programs approved under this act. Penalties are as follows: |
28 | (1) Except as provided in paragraphs (3) and (4), an |
29 | employer who has received a citation for a violation of |
30 | section 302 or of a standard, rule, regulation or order |
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1 | promulgated or issued under this act may be assessed a civil |
2 | penalty of not more than $1,000 for each violation. |
3 | (2) In addition to the penalties provided in paragraphs |
4 | (3) and (4): |
5 | (i) An employer who willfully or repeatedly violates |
6 | section 302 or a standard, rule, regulation or order |
7 | promulgated or issued under this act may be assessed a |
8 | civil penalty of not more than $10,000 for each |
9 | violation. |
10 | (ii) An employer who fails to correct a violation |
11 | for which a citation has been issued within the period |
12 | permitted for its correction may be assessed a civil |
13 | penalty of not more than $1,000 for each day during which |
14 | the violation continues. |
15 | (3) An employer who has received a citation for a |
16 | serious violation of section 302 or a standard, rule, |
17 | regulation or order promulgated or issued under this act |
18 | shall be assessed a civil penalty of not more than $1,000 for |
19 | each violation. For purposes of this paragraph, a serious |
20 | violation shall be deemed to exist in a workplace if there is |
21 | a substantial probability that death or serious physical harm |
22 | could result from a condition which exists, or from one or |
23 | more practices, means, methods, operations or processes which |
24 | have been adopted or are in use in the workplace, unless the |
25 | employer did not and could not, with the exercise of |
26 | reasonable diligence, know of the presence of the violation. |
27 | (4) An employer who violates posting requirements |
28 | prescribed or established under this act shall be assessed a |
29 | civil penalty of not more than $1,000 for each violation. |
30 | (b) Criminal penalties.--Criminal penalties are as follows: |
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1 | (1) If an employer intentionally violates this act or a |
2 | standard, rule, regulation or order promulgated or issued |
3 | under this act and if the violation causes the death of an |
4 | employee, the employer commits a misdemeanor of the third |
5 | degree and shall: |
6 | (i) Upon conviction for the first offense, be |
7 | sentenced to pay a fine of not more than $10,000 or to |
8 | imprisonment for not more than six months, or both. |
9 | (ii) Upon conviction for a subsequent offense, be |
10 | sentenced to pay a fine of not more than $20,000 or to |
11 | imprisonment for not more than one year, or both. |
12 | (2) A person who, without authority from the executive |
13 | director or a designee, gives advance notice of an inspection |
14 | to be conducted under this act commits a misdemeanor of the |
15 | third degree and shall, upon conviction, be sentenced to pay |
16 | a fine of $1,000 or to imprisonment for not more than six |
17 | months, or both. |
18 | (3) A person who knowingly makes a false statement, |
19 | representation or certification in an application, record, |
20 | report, plan or other document filed or required to be |
21 | maintained under this act commits a misdemeanor of the third |
22 | degree and shall, upon conviction, be sentenced to pay a fine |
23 | of $10,000 or to imprisonment for not more than six months, |
24 | or both. |
25 | Section 510. Civil actions. |
26 | (a) Standing.--A person may bring a civil action on the |
27 | person's own behalf against an employer for a violation of this |
28 | act or of a rule or regulation promulgated under this act or |
29 | against the board for failure to enforce this act or a rule or |
30 | regulation promulgated under this act. |
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1 | (b) Costs and fees.--A court of competent jurisdiction may |
2 | award, whenever it seems appropriate, costs of litigation, |
3 | including reasonable attorney and expert witness fees. |
4 | (c) Waiver of sovereign immunity.--The right to sue as |
5 | embodied in the various sections of this act constitutes an |
6 | express waiver of sovereign immunity for the purpose of 1 |
7 | Pa.C.S. § 2310 (relating to sovereign immunity reaffirmed; |
8 | specific waiver). |
9 | CHAPTER 11 |
10 | MISCELLANEOUS PROVISIONS |
11 | Section 1101. Effective date. |
12 | This act shall take effect in 120 days. |
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