PRINTER'S NO. 510
No. 432 Session of 2003
INTRODUCED BY BUXTON, BEBKO-JONES, BELARDI, CAPPELLI, CAWLEY,
CRUZ, DeWEESE, FAIRCHILD, GEORGE, GRUCELA, HARHAI, KELLER,
KIRKLAND, LAUGHLIN, LEACH, LESCOVITZ, LEVDANSKY, MANDERINO,
MANN, McNAUGHTON, MUNDY, PRESTON, RAYMOND, READSHAW, SAINATO,
SANTONI, SCRIMENTI, SHANER, SOLOBAY, STABACK, STURLA, SURRA,
TANGRETTI, THOMAS, TIGUE, WASHINGTON, WOJNAROSKI AND
YOUNGBLOOD, FEBRUARY 25, 2003
REFERRED TO COMMITTEE ON LABOR RELATIONS, FEBRUARY 25, 2003
AN ACT
1 Requiring public employers to protect the occupational safety
2 and health of their employees; and providing for enforcement
3 and penalties.
4 TABLE OF CONTENTS
5 Section 1. Short title.
6 Section 2. Legislative declaration.
7 Section 3. Definitions.
8 Section 4. Application.
9 Section 5. Duties.
10 Section 6. Regulations.
11 Section 7. Standards.
12 Section 8. Variances.
13 Section 9. Pennsylvania Occupational Safety and
14 Health Review Board.
15 Section 10. Appeal from review board.
16 Section 11. Inspection and investigation powers.
1 Section 12. Inspection and investigation of violations.
2 Section 13. Recordkeeping.
3 Section 14. Compliance orders.
4 Section 15. Enforcement procedures.
5 Section 16. Injunction proceedings.
6 Section 17. Discrimination against employees.
7 Section 18. Research and demonstration projects.
8 Section 19. Education programs.
9 Section 20. Reports to United States Secretary of Labor.
10 Section 21. Confidentiality of information obtained.
11 Section 22. Penalties.
12 Section 23. Effective date.
13 The General Assembly of the Commonwealth of Pennsylvania
14 hereby enacts as follows:
15 Section 1. Short title.
16 This act shall be known and may be cited as the Public
17 Employees Occupational Safety and Health Act.
18 Section 2. Legislative declaration.
19 The General Assembly finds and declares as follows:
20 (1) It is a basic right of all employees to work in an
21 environment that is free from hazards and risks to their
22 safety. It is the intent of the General Assembly to insure
23 that this right is also afforded to employees of the
24 Commonwealth, its counties, cities, towns, boroughs and other
25 public employers who serve the people of this Commonwealth.
26 (2) A significant percentage of all of those employed in
27 this Commonwealth are employed by the Commonwealth or by one
28 of its political subdivisions. Many of these public employees
29 perform job functions comparable to those performed by
30 workers in the private sector who are protected by the United
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1 States Occupational Safety and Health Act of 1970. The
2 General Assembly, therefore, finds it inappropriate to
3 continue two standards for employee safety, one applicable to
4 those who work in the private sector and one for those who
5 are employed by a public employer.
6 (3) The General Assembly has further determined that a
7 safe place in which to work is economically advantageous to
8 employers. Work-related accidents and injuries and the
9 absences caused thereby decrease employee productivity and
10 increase workers' compensation costs. In addition, unsafe
11 premises increase the risk of financial liability for
12 injuries to members of the public who frequent public
13 buildings.
14 (4) The General Assembly, in an exercise of the
15 Commonwealth's police power, charges the Secretary of Labor
16 and Industry with the responsibility to insure that all
17 public employees are afforded the same safeguards in their
18 workplace as are granted to employees in the private sector.
19 Section 3. Definitions.
20 The following words and phrases when used in this act shall
21 have the meanings given to them in this section unless the
22 context clearly indicates otherwise:
23 "Authorized employee representative." An employee authorized
24 by the employees or the designated representative of an employee
25 organization recognized or certified to represent the employees.
26 "Employee organization." An organization of any kind, or any
27 agency or employee representation committee or plan in which
28 membership includes public employees, and which exists for the
29 purpose, in whole or in part, of dealing with employers
30 concerning grievances, employee-employer disputes, wages, rates
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1 of pay, hours of employment or conditions of work but shall not
2 include any organization which practices discrimination in
3 membership because of race, color, creed, national origin or
4 political affiliation.
5 "Occupational Safety and Health Act" or "Federal OSHA." The
6 Occupational Safety and Health Act of 1970 (Public Law 91-596,
7 29 U.S.C. § 651 et seq.).
8 "Occupational safety and health standard." A standard which
9 requires conditions, or the adoption or use of one or more
10 practices, means, methods, operations or processes, reasonably
11 necessary or appropriate to provide safe or healthful employment
12 in places of employment.
13 "Person." One or more individuals, partnerships,
14 associations, corporations, business trusts, legal
15 representatives or any organized group of persons.
16 "Public employee" or "employee." Any individual employed by
17 a public employer.
18 "Public employer" or "employer." The Commonwealth, its
19 political subdivisions, including school districts and any
20 officer, board, commission, agency, authority or other
21 instrumentality thereof, and any nonprofit organization or
22 institution and any charitable, religious, scientific, literary,
23 recreational, health, educational or welfare institution
24 receiving grants or appropriations from Federal, State or local
25 governments but shall not include employers covered or presently
26 subject to coverage under the Occupational Safety and Health Act
27 of 1970 (Public Law 91-596, 29 U.S.C. § 651 et seq.).
28 "Review board." The Pennsylvania Occupational Safety and
29 Health Review Board established under this act.
30 "Secretary." The Secretary of Labor and Industry of the
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1 Commonwealth or his or her designated agent.
2 Section 4. Application.
3 (a) Uniformity.--Any occupational safety or health standards
4 promulgated under the provisions of this act shall apply to all
5 public employers and public employees, and the Secretary shall
6 have authority to enforce such standards in accordance with the
7 provisions of this act.
8 (b) Nonapplication.--Nothing in this act shall be construed
9 to supersede or in any manner affect any workers' compensation
10 law or to enlarge, diminish or affect in any manner common law
11 or statutory rights, duties or liabilities of employers or
12 employees under any law with respect to injuries, diseases or
13 death of employees arising out of and in the course of
14 employment.
15 (c) Federal law.--Notwithstanding any other provision in
16 this act, an occupational safety or health standard promulgated
17 under this act shall apply only to employees not covered by a
18 Federal occupational safety or health standard promulgated under
19 section 6 of the Occupational Health and Safety Act or
20 amendments thereto.
21 Section 5. Duties.
22 (a) Hazard-free location.--Each employer shall furnish to
23 each of its employees, employment and a place of employment free
24 from recognized hazards that are causing or are likely to cause
25 death or serious physical harm to its employees and which will
26 provide reasonable and adequate protection to the lives, safety
27 or health of its employees.
28 (b) Compliance.--Each employer shall comply with the
29 occupational safety and health standards promulgated under this
30 act.
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1 (c) Statement.--Each employer shall, upon the written
2 request of any employee, furnish such employee with a written
3 statement listing the substances which the employee uses or with
4 which the employee comes into contact that have been identified
5 as toxic or hazardous by occupational health and safety
6 standards, under CFR 1910.1000 (relating to air contaminants),
7 and/or pursuant to the act of June 21, 1957 (P.L.390, No.212),
8 referred to as the Right-to-Know Law.
9 (d) Compliance.--Each employee and employer shall comply
10 with occupational safety and health standards and all rules,
11 regulations and orders issued pursuant to this act which are
12 applicable to his or her own actions and conduct.
13 (e) Plan.--The Commonwealth shall promulgate a plan for the
14 development and enforcement of occupational safety and health
15 standards with respect only to public employers and employees,
16 in accordance with section 18(b) of the Occupational Safety and
17 Health Act, which provides: "Any State which, at any time,
18 desires to assume responsibility for development and enforcement
19 therein of occupational safety and health standards relating to
20 any occupational safety or health issue with respect to which a
21 Federal standard has been promulgated under section 6 shall
22 submit a State plan for the development of such standards and
23 their enforcement."
24 Section 6. Regulations.
25 The secretary may promulgate such procedural regulations as
26 he or she shall consider necessary and proper to effectuate the
27 purposes and provisions of this act and shall:
28 (1) Provide for the preparation, adoption, amendment or
29 repeal of regulations governing the conditions of employment
30 of general and special application in all workplaces.
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1 (2) Provide a method of encouraging employers and
2 employees in their efforts to reduce the number of safety and
3 health hazards arising from undesirable or inappropriate
4 working conditions at the workplace and of stimulating
5 employers and employees to institute new and to perfect
6 existing programs for providing safe and healthful working
7 conditions.
8 (3) Provide for appropriate reporting procedures by
9 employers with respect to such information relating to
10 conditions of employment as will assist in achieving the
11 objectives of this act.
12 (4) Provide for the frequency, method and manner of
13 making inspections of workplaces without advance notice,
14 provided that, in the event of an emergency or unusual
15 situation, the secretary may give advance notice.
16 (5) Provide for the publication and dissemination to
17 employers, employees and labor organizations, and the
18 posting, where appropriate, by employers of informational,
19 educational or training materials designed to aid and assist
20 in achieving the objectives of this act.
21 (6) Provide for the establishment of new and the
22 perfection and expansion of existing programs for
23 occupational safety and health education for employers and
24 employees and institute methods and procedures for the
25 establishment of a program for voluntary compliance by
26 employers and employees with the requirements of this act and
27 all applicable occupational safety and health standards and
28 regulations promulgated pursuant to the authority of this
29 act.
30 Section 7. Standards.
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1 (a) Adoption.--The secretary shall by rule adopt all
2 occupational safety and health standards, amendments or changes
3 adopted or recognized by the United States Secretary of Labor
4 under the authority of the Occupational Safety and Health Act in
5 order to provide reasonable and adequate protection to the
6 lives, safety and health of public employees. The secretary
7 shall promulgate and repeal such regulations as may be necessary
8 to conform to the standards established pursuant to the United
9 States Occupational Safety and Health Act or pursuant to
10 subsection (b). Where no Federal standards are applicable, the
11 secretary shall provide for the development of such State
12 standards as may be necessary in special circumstances.
13 (b) Exception.--No standards shall be adopted for products
14 distributed or used in interstate commerce which are different
15 from Federal standards for such products unless such standards
16 are required by compelling local conditions and do not unduly
17 burden interstate commerce.
18 (c) Challenge.--Any person who may be adversely affected by
19 a standard or regulation issued under this act may challenge the
20 validity or application of such standard or regulation by
21 bringing an action for declaratory judgment.
22 Section 8. Variances.
23 (a) Requirements.--Any public employer may apply to the
24 secretary for a temporary order granting a variance from a
25 standard or any provision thereof promulgated under this act. A
26 temporary order shall be granted only if the employer files an
27 application that meets the requirements of subsection (b) and
28 establishes that:
29 (1) the employer is unable to comply with a standard by
30 its effective date because of unavailability of professional
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1 or technical personnel or of materials and equipment needed
2 to come into compliance with the standard or because
3 necessary construction or alteration of facilities cannot be
4 completed by the effective date.
5 (2) The employer is taking all available steps to
6 safeguard employees against the hazards covered by the
7 standard.
8 (3) The employer has an effective program for coming
9 into compliance with the standard as quickly as practicable.
10 Any temporary order issued under this section shall prescribe
11 the practices, means, methods, operations and processes which
12 the employer must adopt and use while the order is in effect and
13 state in detail the employer's program for coming into
14 compliance with the standard. A temporary order may be granted
15 only after notice to employees and an opportunity for a hearing,
16 provided that the secretary may issue one interim order to be
17 effective until a decision is made on the basis of the hearing.
18 A temporary order shall not be in effect for longer than the
19 period needed by the employer to achieve compliance with the
20 standard or one year, whichever is shorter, except that such an
21 order may be renewed not more than twice if the requirements of
22 this section are met and if an application for renewal is filed
23 at least 90 days prior to the expiration date of the order. An
24 interim renewal of an order shall not remain in effect longer
25 than 180 days.
26 (b) Temporary variance.--An application for a temporary
27 variance order shall contain:
28 (1) a specification of the standard or portion thereof
29 from which the employer or owner seeks a variance;
30 (2) a representation by the employer, supported by
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1 representations from qualified persons who have firsthand
2 knowledge of the facts represented, that the employer is
3 unable to comply with the standard or portion thereof, and a
4 detailed statement of the reasons therefor;
5 (3) a statement of the steps the employer has taken and
6 will take, with specific dates, to protect employees against
7 the hazard covered by the standard;
8 (4) a statement of when the employer expects to be able
9 to comply with the standard and what steps the employer has
10 taken and will take, with dates specified, to come into
11 compliance with the standard; and
12 (5) a certification that the employer has informed its
13 employees of the application by giving a copy thereof to
14 their authorized representative, posting a statement giving a
15 summary of the application and specifying where a copy may be
16 examined at the place or places where notices to employees
17 are normally posted and by other appropriate means.
18 A description of how employees have been informed shall be
19 contained in the certification. The information to employees
20 shall also inform them of their right to petition the secretary
21 for a hearing.
22 (c) Experimental program.--The secretary is authorized to
23 grant a variance from any standard or portion thereof whenever
24 he or she determines that such variance is necessary to permit
25 an employer to participate in an experimental program approved
26 by the secretary, which is designed to demonstrate or validate
27 new and improved techniques to safeguard the health or safety of
28 workers.
29 (d) Notice to employees.--An affected employer may apply to
30 the secretary for a rule or order for a variance from a standard
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1 promulgated under this act. Affected employees shall be given
2 notice of each such application an opportunity to participate in
3 a hearing. The secretary shall issue a rule or order if he or
4 she determines on the record, after opportunity for an
5 inspection where appropriate and a hearing, that the proponent
6 of the variance has demonstrated by a preponderance of the
7 evidence that the conditions, practices, means, methods,
8 operations or processes used or proposed to be used by an
9 employer will provide employment and places of employment which
10 are as safe and healthful as those which would prevail if he
11 complied with the standard. The rule or order shall prescribe
12 the conditions the employer must maintain, and the practices,
13 means, methods, operations and processes which he or she must
14 adopt and utilize to the extent they differ from the standard in
15 question. A rule or order may be modified or revoked upon
16 application by an employer, any employee or employee
17 representative, or by the secretary on his or her own motion, in
18 the manner prescribed for its issuance under this section at any
19 time after six months from its issuance.
20 (e) Challenge.--A person who may be adversely affected by a
21 standard or regulation issued under this section may challenge
22 the validity or applicability of such standard or regulation by
23 bringing an action for declaratory judgment.
24 Section 9. Pennsylvania Occupational Safety and Health Review
25 Board.
26 (a) Board established.--The Pennsylvania Occupational Safety
27 and Health Review Board is established to have and exercise the
28 powers, duties and prerogatives provided by the provisions of
29 this act. The review board shall consist of five persons
30 appointed by the Governor from among persons who by reason of
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1 training, education or experience are qualified to carry out the
2 functions of the review board under this act.
3 (b) Terms.--Members shall serve terms of four years and
4 until their successors are appointed. The Governor shall
5 designate one of the members to serve as chairperson.
6 (c) Hearings, appeals.--A member of the board shall hear and
7 rule on appeals from compliance orders, notifications and
8 penalties issued under the provisions of this act.
9 (d) Regulations.--The secretary shall adopt and promulgate
10 rules and regulations with respect to the procedural aspect of
11 the review board hearings.
12 (e) Per diems, schedules.--Any review board member hearing
13 an appeal or appeals under the provision of this act shall be
14 paid a per diem amount to be determined by the secretary. The
15 members shall alternate the hearing of such appeals according to
16 a schedule adopted by the secretary. If a member is unable to
17 hear an appeal, the next available member, in accordance with
18 the schedule, shall hear the appeal. A member shall be selected
19 to hear the appeal within 30 days after the date it was filed.
20 (f) Staff.--Any staff necessary for the purposes of such
21 hearing shall be provided by the Department of Labor and
22 Industry.
23 (g) Powers.--In the conduct of hearings the review board
24 member may subpoena and examine witnesses, require the
25 production of evidence, administer oaths and take testimony and
26 depositions.
27 (h) Final action.--After hearing an appeal, the review board
28 member may sustain, modify or dismiss a compliance order or
29 penalty, provided such decision shall be issued within 120 days
30 after the appeal was filed.
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1 Section 10. Appeal from review board.
2 Any person, including the secretary, adversely affected or
3 aggrieved by an order of the review board, after all
4 administrative remedies provided by this act have been
5 exhausted, is entitled to judicial review.
6 Section 11. Inspection and investigation powers.
7 (a) Authorization.--In order to carry out the purposes of
8 this act, the secretary or his or her designated agent, upon
9 presenting appropriate credentials to the employer, is
10 authorized to enter without advance notice and at reasonable
11 times any workplace or environment where work is performed by an
12 employee of an employer and to inspect and investigate, during
13 regular working hours and at other reasonable times and in a
14 reasonable manner, any such place of employment and all
15 pertinent conditions, structures, machines, apparatus, devices,
16 equipment and the materials therein and to question, privately,
17 any such employer or employee. Whenever the secretary,
18 proceeding pursuant to this section, is denied admission to any
19 such place of employment, he or she shall obtain a warrant to
20 make an inspection or investigation of such place of employment
21 from any judge of the Commonwealth Court.
22 (b) Witnesses and evidence.--In making his or her
23 inspections and investigations under this section, the secretary
24 may require the attendance and testimony of witnesses and the
25 production of evidence under oath. Witnesses shall be paid the
26 same fees and mileage that are paid witnesses in the courts of
27 this Commonwealth. In case of a failure or refusal of any person
28 to obey such an order, the common pleas court for the judicial
29 district wherein such person resides, is found or transacts
30 business shall issue to such person an order requiring such
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1 person to appear to produce evidence if asked and when so
2 ordered and to give testimony relating to the matter under
3 investigation or in question. Any failure to obey such order of
4 the court may be punished by the court as a contempt thereof.
5 (c) Authorized accompanying persons.--Subject to regulations
6 issued by the secretary, a representative of the employer and a
7 representative authorized by the employees shall be given an
8 opportunity to accompany the secretary or his or her authorized
9 representative during the physical inspection of any workplace
10 for the purposes of aiding such inspection. Where there is no
11 authorized employee representative, the secretary or his or her
12 authorized representative shall consult with a reasonable number
13 of employees concerning matters of health and safety in the
14 workplace. No employee who accompanies the secretary or his or
15 her authorized representative on an inspection shall suffer any
16 reduction in wages.
17 Section 12. Inspection and investigation of violations.
18 (a) Request for inspection.--Any employee or authorized
19 employee representative who believes that a violation of an
20 occupational safety or health standard exists or that an
21 imminent danger exists may request an inspection by giving
22 notice to the secretary of such violation or danger. The notice
23 and request shall be in writing, shall set forth with reasonable
24 particularity the grounds for the notice and shall be signed by
25 the employee or representative of employees. A copy of the
26 notice shall be provided by the secretary to the employer or its
27 agent no later than the time of inspection, except that, on the
28 request of the person giving such notice, the names of
29 individual employees or representatives of employees shall be
30 kept confidential.
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1 (b) Inspection warranted.--Whenever the secretary receives a
2 request for inspection and determines that there are reasonable
3 grounds to believe that such violation or danger exists, he or
4 she shall make an inspection as soon as practicable to determine
5 if such violation or danger exists. The inspection may be
6 limited to the alleged violation or danger. If the secretary
7 determines there are no reasonable grounds to believe that such
8 violation or danger exists, he or she shall notify the employer,
9 employee or representative of employees in writing of such
10 determination. The notification shall not preclude future
11 enforcement action if conditions change.
12 (c) Notice of suspected violations.--Prior to or during any
13 inspection of a workplace, any employee or representative of
14 employees employed in such workplace may notify the secretary or
15 any representative of the secretary responsible for conducting
16 the inspection in writing of any violation of this act which
17 they have reason to believe exists in the workplace. The
18 secretary shall by regulation establish procedures for informal
19 review of any refusal by a representative of the secretary to
20 issue a citation with respect to any such alleged violation and
21 shall furnish the employer and the employees or representative
22 of the employees requesting such review a written statement of
23 the reasons for the secretary's final disposition of the case.
24 The notification shall not preclude future enforcement action if
25 conditions change.
26 (d) Authorization.--The secretary is authorized to compile,
27 analyze and publish in either summary or detailed form all
28 reports or information obtained under this section.
29 (e) Regulations.--The secretary shall prescribe such rules
30 and regulations as he may deem necessary to carry out his
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1 responsibilities under this act, including rules and regulations
2 dealing with the inspection of an employer's or owner's
3 establishment.
4 Section 13. Recordkeeping.
5 (a) Employer duties.--In accordance with the secretary's
6 regulations, each employer shall make, keep and preserve and
7 make available to the secretary such records regarding its
8 activities relating to this act as the secretary deems necessary
9 or appropriate for developing information regarding the causes
10 and prevention of occupational accidents and illness. Such
11 regulations may include provisions requiring employers to
12 conduct periodic inspections. The secretary also shall issue
13 regulations requiring that employers, through posting of
14 notices, training or other appropriate means, keep their
15 employees informed of their protections and obligations under
16 this act, including the provisions and regulations of this act.
17 (b) Work-related injuries, illnesses and death.--The
18 secretary shall prescribe regulations requiring employers to
19 maintain accurate records and to make public periodic reports of
20 work-related deaths, injuries and illnesses, other than minor
21 injuries requiring only first aid treatment and not involving
22 lost time from work, medical treatment, loss of consciousness,
23 restriction of work or motion or transfer to another job.
24 (c) Exposure to toxic materials.--The secretary shall issue
25 regulations requiring employers to maintain accurate records of
26 employee exposures to potentially toxic materials or harmful
27 physical agents which are required to be monitored or measured
28 under any occupational health and safety standard adopted under
29 this act. The regulations shall provide employees or their
30 representatives with an opportunity to observe such monitoring
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1 or measuring and have access to the records thereof. The
2 regulations shall make appropriate provisions for each employee
3 or former employee to have access to such records as will
4 indicate his or her own exposure to toxic materials or harmful
5 physical agents. Each employer shall promptly notify any
6 employee who has been or is being exposed to toxic materials or
7 harmful physical agents in concentrations or at levels which
8 exceed those prescribed by an occupational safety and health
9 standard promulgated under this act and shall inform any
10 employee who is being thus exposed of the corrective action
11 being taken.
12 Section 14. Compliance orders.
13 (a) Issuance.--Whenever the secretary, upon inspection or
14 investigation, determines that an employer has violated a
15 provision of this act or an occupational safety or health
16 standard or regulation promulgated under this act, he or she
17 shall with reasonable promptness issue a compliance order to the
18 employer. Each compliance order will be in writing and shall
19 describe the nature of the violation, including a reference to
20 the provision of the act or the standard, regulation or order
21 alleged to have been violated. The compliance order shall fix a
22 reasonable time for the abatement of the violation.
23 (b) Posted.--Each compliance order issued under this section
24 or a copy or copies thereof shall be prominently posted as
25 prescribed in regulations issued by the secretary at or near
26 each place a violation referred to in the compliance order
27 occurred and at such locations within the workplace reasonably
28 accessible to the employees.
29 Section 15. Enforcement procedures.
30 (a) Employer notification.--If, after inspection or
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1 investigation, the secretary issues a compliance order pursuant
2 to section 14, he or she shall, within a reasonable time after
3 the termination of such inspection or investigation, notify the
4 employer by certified mail of the penalty, if any, proposed to
5 be assessed pursuant to section 17. Such notification shall
6 inform the employer that it has 15 working days from the receipt
7 of notice within which to notify the secretary that it wishes to
8 contest the compliance order or proposed assessment of penalty.
9 If the employer fails to so notify the secretary within 15 days
10 and if no notice is filed by any employee or representative of
11 employees pursuant to subsection (c) within 15 days, the
12 compliance order and the assessment, as proposed, shall be
13 deemed a final order of the secretary and not subject to review
14 by any court or agency.
15 (b) Compliance failure.--If the secretary has reason to
16 believe that an employer has failed to correct a violation for
17 which a compliance order has been issued within the period
18 permitted for such correction, the secretary shall notify the
19 employer by certified mail of the failure and of the penalty
20 proposed to be assessed pursuant to section 17 by reason of such
21 failure, provided that, in the case of a review proceeding
22 initiated by the employer under this section in good faith and
23 not solely for delay or the avoidance of penalties, the period
24 permitted for correction of the violation shall not begin to run
25 until the entry of a final order by the review board. The
26 notification by the secretary shall inform the employer that it
27 has 15 working days from the receipt of the notice within which
28 to notify the secretary that it wishes to contest the
29 notification or the proposed assessment of penalty. If, within
30 15 days from receipt of notification under this section, the
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1 employer fails to notify the secretary that it intends to
2 contest the notification or proposed assessment of penalty, the
3 notification and assessment as proposed shall be deemed a final
4 order of the review board and not subject to review by any court
5 or agency.
6 (c) Contesting of order.--If an employer notifies the
7 secretary that it intends to contest a compliance order issued
8 under section 14(a) or a notification issued under subsection
9 (a) or (b) of this section, or if, within 15 days after the
10 issuance of a compliance order issued under section (14)(a), any
11 employee or employee representative files a notice with the
12 secretary alleging that the period of time fixed in the
13 compliance order for abatement of the violation is unreasonable,
14 the secretary shall immediately advise the review board of such
15 notification, and the review board shall afford an opportunity
16 for a hearing. The review board shall thereafter issue an order
17 based on findings of fact affirming, modifying or vacating the
18 secretary's compliance order or proposed penalty or directing
19 other appropriate relief. The order shall become final 30 days
20 after its issuance. Upon a showing by an employer of a good
21 faith effort to comply with the abatement requirements of a
22 compliance order and a showing that abatement has not been
23 completed because of factors beyond the employer's reasonable
24 control, the secretary, after an opportunity for a hearing as
25 provided in this subsection, shall issue an order affirming or
26 modifying the abatement requirements in such compliance order.
27 The rules of procedure prescribed by the secretary shall provide
28 affected employees or employee representatives of affected
29 employees an opportunity to participate as parties to hearings
30 under this subsection.
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1 Section 16. Injunction proceedings.
2 (a) Commonwealth Court.--The Commonwealth Court shall have
3 jurisdiction upon petition of the secretary, pursuant to the law
4 and general rules, to restrain any conditions or practices in
5 any place of public employment which are such that a danger
6 exists which could reasonably be expected to cause death or
7 serious physical harm immediately or before the imminence of
8 such danger can be eliminated through the abatement procedures
9 otherwise provided for by this act. Any order issued under this
10 section shall require such steps to be taken as may be necessary
11 to avoid, correct or remove such imminent danger and prohibit
12 the employment or presence of any individual in locations or
13 under conditions where such imminent danger exists, except
14 individuals whose presence is necessary to avoid, correct or
15 remove such imminent danger. No temporary restraining order
16 issued without notice shall be effective more than five days.
17 (b) Inform employees.--Whenever and as soon as an inspector
18 concludes that conditions or practices described in subsection
19 (a) exist in any place of public employment, he or she shall
20 inform the affected employees and employers of the danger and
21 shall further inform such persons that he or she is recommending
22 to the secretary that relief be sought.
23 (c) Employee actions.--If the secretary arbitrarily or
24 capriciously fails to seek relief under this section, any
25 employee who may be injured by reason of such failure, or the
26 authorized employee representative of such employees may bring
27 an action against the secretary in the Commonwealth Court to
28 compel the secretary to seek such an order and for such further
29 relief as may be appropriate.
30 Section 17. Discrimination against employees.
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1 (a) Prohibition.--An employer or any other person shall not
2 discriminate against any employee because such employee has
3 filed any complaint or instituted or caused to be instituted any
4 proceeding under or related to this act, or has testified or is
5 about to testify in any such proceeding, or because of the
6 exercise by such employee on their behalf or on behalf of
7 others, of any right afforded by this act.
8 (b) Complaint.--Any employee who believes that he or she has
9 been discharged, disciplined or otherwise discriminated against
10 by any person in violation of this section may, within 30 days
11 after such violation occurs, file a complaint with the secretary
12 alleging such discrimination. Upon receipt of the complaint, the
13 secretary shall cause investigation to be made as deemed
14 appropriate and shall, if requested, withhold the name of the
15 complainant from the employer. If, upon investigation, the
16 secretary determines that the provisions of this section have
17 been violated, the secretary shall request the Attorney General
18 to bring an action in the Commonwealth Court against the person
19 or persons alleged to have violated this act. In any such action
20 the Commonwealth Court shall have jurisdiction for cause shown
21 to restrain violations of this act and order all appropriate
22 relief, including reinstatement of the employee to his or her
23 former position with back pay and benefits.
24 (c) Determination.--Within 90 days of receipt of a complaint
25 filed under this section, the secretary shall notify the
26 complainant and his representative by registered mail of his or
27 her determination of such complaint.
28 (d) Rights preserved.--Nothing in this act shall be deemed
29 to diminish the rights of any employee under any law, rule or
30 regulation or under any collective bargaining agreement.
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1 Section 18. Research and demonstration projects.
2 The secretary shall conduct research and undertake
3 demonstration projects relating to occupational safety and
4 health issues and problems either within the Department of Labor
5 and Industry or by grants or contracts. The secretary may
6 prescribe regulations requiring employers to measure, record and
7 make reports on exposure of employees to toxic substances which
8 the secretary believes may endanger the health or safety of
9 employees. The secretary shall cooperate with the Director of
10 the National Institute for Occupational Safety and Health of the
11 Department of Health and Human Services of the United States in
12 establishing such programs of medical examinations and tests as
13 may be necessary to determine the incidence of occupational
14 illnesses and employee susceptibility to such illnesses. Such
15 programs, on the request of the employer, may be paid for by the
16 secretary together with such other assistance as may be
17 required. Information obtained under this act shall be made
18 public without revealing the names of individual workers covered
19 by physical examination or special studies and shall be made
20 available to employers, employees and their respective
21 organizations.
22 Section 19. Education programs.
23 (a) Adequate personnel.--The secretary shall conduct
24 directly or by grants or contracts education programs to provide
25 an adequate supply of qualified personnel to carry out the
26 purposes of this act and informational programs on the
27 importance and proper use of adequate safety and health
28 equipment.
29 (b) Short-term training.--The secretary is authorized to
30 conduct directly or by grants or contracts short-term training
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1 of personnel engaged in work related to the secretary's
2 responsibilities under this act.
3 (c) Avoidance and prevention.--The secretary shall provide
4 for the establishment and supervision of programs for the
5 education and training of employers, owners and employees in the
6 recognition, avoidance and prevention of unsafe or unhealthful
7 working conditions in employment covered by this act. The
8 secretary shall consult with and advise owners and employers,
9 employees and organizations representing employers, owners and
10 employees as to effective means of preventing occupational
11 injuries and illnesses.
12 Section 20. Reports to United States Secretary of Labor.
13 In regard to the administration and enforcement of this act,
14 the secretary shall make such reports to the Secretary of Labor
15 of the United States in such form and containing such
16 information as the secretary shall time to time require.
17 Section 21. Confidentiality of information obtained.
18 All information reported to or otherwise obtained by the
19 secretary or his or her representatives or any member of the
20 review board in connection with any inspection or proceeding
21 under this act which contains or might reveal a trade secret
22 shall be considered confidential, provided that such information
23 may be disclosed to other officers or employees concerned with
24 carrying out this act or when relevant in any proceeding under
25 this act. In any such proceedings the secretary, the review
26 board or the court shall issue such orders as may be appropriate
27 to protect the confidentiality of trade secrets.
28 Section 22. Penalties.
29 (1) Any employer who willfully or repeatedly violates
30 the requirements of section 4 or 5, any occupational health
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1 and safety standard promulgated pursuant to section 6 or
2 regulations prescribed pursuant to this act may be assessed a
3 civil penalty of not more than $10,000 for each violation.
4 (2) Any employer who has received a compliance order for
5 a serious violation of the requirements of section 4 or 5,
6 any occupational health and safety standard promulgated
7 pursuant to section 6 or regulations prescribed pursuant to
8 this act shall be assessed a civil penalty of up to $1,000
9 for each violation.
10 (3) Any employer who has received a compliance order for
11 a violation of the requirements of sections 4 or 5, any
12 occupational health and safety standard promulgated pursuant
13 to section 6 or regulations prescribed pursuant to this act,
14 which violation has been determined not to be of a serious
15 nature, may be assessed a civil penalty of up to $1,000 for
16 each violation.
17 (4) Any employer who fails to correct a violation for
18 which compliance order has been issued under section 15
19 within the period permitted for its correction which period
20 shall not begin to run until the date of the final order of
21 the board in the case of any review proceeding under section
22 16 initiated by the employer in good faith and not solely for
23 delay or avoidance of penalties may be assessed a civil
24 penalty of not more than $1,000 for each day during which
25 such failure or violation continues.
26 (5) Any employer who willfully violates any standard or
27 order promulgated pursuant to section 6 or of any regulation
28 adopted pursuant to this act, which violation caused death to
29 any employee shall be fined not more than $10,000 or
30 imprisoned not more than six months or both provided that, if
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1 the conviction is for a violation committed after a first
2 conviction of such person, punishment shall be by fine of not
3 more than $20,000 or by imprisonment for not more than one
4 year or both.
5 (6) Any person who gives advance notice of any
6 inspection to be conducted under this act without authority
7 from the secretary or his or her designees shall be fined not
8 more than $1,000 or imprisoned not more than six months or
9 both.
10 (7) Any person who knowingly makes any false statement,
11 representation or certification in any application, record,
12 report, plan or other document filed or required to be
13 maintained under this act shall be fined not more than
14 $10,000 or imprisoned not more than six months, or both.
15 (8) Any employer who violates any of the posting
16 requirements as prescribed under this act shall be assessed a
17 civil penalty of up to $1,000 for each violation.
18 (9) Any employer who refuses entry to any authorized
19 representative of the secretary while such representative is
20 attempting to conduct an investigation or inspection pursuant
21 to the provisions of this act or in any way willfully
22 obstructs him from carrying out his investigation or
23 inspection shall be fined not more than $1,000 or imprisoned
24 not more than six months or both.
25 (10) Any employer or individual who willfully causes
26 bodily harm to any authorized representative of the secretary
27 while such representative is attempting to conduct an
28 investigation or inspection pursuant to the provision of this
29 act shall be fined not more than $10,000 or imprisoned not
30 more than one year or both.
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1 (11) The review board shall have authority to assess all
2 civil penalties provided in this act, giving due
3 consideration to the appropriateness of the penalty with
4 respect to the size of the business of the employer being
5 charged, the gravity of the violation, the good faith of the
6 employer and the history of previous violations.
7 (12) For the purposes of this act, a serious violation
8 shall be deemed to exist in a place of employment if there is
9 a substantial probability that death or serious physical harm
10 could result from a condition which exists or from one or
11 more practices, means, methods, operations or processes which
12 have been adopted or are in use in such place of employment
13 unless the employer did not and could not with the exercise
14 of reasonable diligence know of the presence of the
15 violation.
16 (13) Civil penalties owed under this chapter shall be
17 paid to the secretary for deposit in to the treasury of the
18 Commonwealth and may be recovered in a civil action in the
19 name of the Commonwealth brought in the Commonwealth Court.
20 (14) Any person who violates section 22 shall be fined
21 not more than $1,000 or imprisoned not more than one year or
22 both. In the event that such person is an officer or employee
23 responsible for carrying out the provisions of this act, he
24 or she shall be removed from office or employment upon
25 conviction under this section.
26 Section 23. Effective date.
27 This act shall take effect in 60 days.
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