PRINTER'S NO. 1205
No. 1007 Session of 1999
INTRODUCED BY KASUNIC, BELAN, TARTAGLIONE, MELLOW, BODACK,
STOUT, WOZNIAK, BELL, COSTA, SCHWARTZ AND BOSCOLA,
JUNE 14, 1999
REFERRED TO LABOR AND INDUSTRY, JUNE 14, 1999
AN ACT
1 Providing for workplace health and safety standards for public
2 employees; providing for powers and duties of the Secretary
3 of Labor and Industry; creating a review board; providing for
4 workplace inspections; and imposing penalties.
5 TABLE OF CONTENTS
6 Section 1. Short title.
7 Section 2. Legislative declaration.
8 Section 3. Definitions.
9 Section 4. Application.
10 Section 5. Duties.
11 Section 6. Regulations.
12 Section 7. Standards.
13 Section 8. Variances.
14 Section 9. Pennsylvania Occupational Safety and Health Review
15 Board.
16 Section 10. Appeal from review board.
17 Section 11. Inspection and investigation powers.
18 Section 12. Inspection and investigation of violations.
1 Section 13. Recordkeeping
2 Section 14. Compliance orders.
3 Section 15. Enforcement procedures.
4 Section 16. Injunction proceedings.
5 Section 17. Penalties.
6 Section 18. Discrimination against employees.
7 Section 19. Research and demonstration projects.
8 Section 20. Education programs.
9 Section 21. Reports to United States Secretary of Labor.
10 Section 22. Confidentiality of information maintained.
11 Section 23. Effective date.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. Short title.
15 This act shall be known and may be cited as the Public
16 Employees Occupational Safety and Health Act.
17 Section 2. Legislative declaration.
18 The General Assembly hereby declares as follows:
19 (1) It is a basic right of all employees to work in an
20 environment that is free from hazards and risks to their
21 safety. It is the intent of the General Assembly to insure
22 that this right is also afforded to employees of the
23 Commonwealth, its counties, cities, towns, boroughs and other
24 public employers who serve the people of this Commonwealth.
25 (2) A significant percentage of all of those employed in
26 this Commonwealth are employed by the Commonwealth or by one
27 of its political subdivisions. Many of these public employees
28 perform job functions comparable to those performed by
29 workers in the private sector who are protected by the
30 Occupational Safety and Health Act of 1970 (Public Law 91-
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1 596, 29 U.S.C. § 651 et seq.). The General Assembly,
2 therefore, finds it inappropriate to continue two standards
3 for employee safety, one applicable to those who work in the
4 private sector and one for those who are employed by a public
5 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. The term does
2 not 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 of 1970" or "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." An individual employed by a
17 public employer.
18 "Public employer" or "employer." The Commonwealth, its
19 political subdivisions, including school districts and any
20 office, 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 government but does 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 a designated agent.
2 Section 4. Application.
3 (a) General rule.--Any occupational safety or health
4 standards promulgated under the provisions of this act shall
5 apply to all public employers and public employees, and the
6 secretary shall have authority to enforce such standards in
7 accordance with the provisions of this act.
8 (b) Statutory and common law rights preserved.--Nothing in
9 this act shall be construed to supersede or in any manner affect
10 any workers' compensation law or to enlarge, diminish or affect
11 in any manner common law or statutory rights, duties or
12 liabilities of employers or employees under any law with respect
13 to injuries, diseases or death of employees arising out of and
14 in the course of employment.
15 (c) Employees not covered by Federal standard.--
16 Notwithstanding any other provision in this act, an occupational
17 safety or health standard promulgated under this act shall apply
18 only to employees not covered by a Federal occupational safety
19 or health standard promulgated under section 6 of the
20 Occupational Health and Safety Act of 1970 or amendments
21 thereto.
22 Section 5. Duties.
23 (a) General rule.--Each employer shall furnish to each of
24 its employees, employment and a place of employment free from
25 recognized hazards that are causing or are likely to cause death
26 or serious physical harm to its employees and which will provide
27 reasonable and adequate protection to the lives, safety or
28 health of its employees.
29 (b) Compliance with act.--Each employer shall comply with
30 the occupational safety and health standards promulgated under
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1 this act.
2 (c) Written statement of substances.--Each employer shall,
3 upon the written request of any employee, furnish such employee
4 with a written statement listing the substances which such
5 employee uses or with which such employee comes into contact
6 that have been identified as toxic or hazardous by occupational
7 health and safety standards under 29 CFR Pt. 1910 Subpt. H
8 (relating to hazardous materials) or pursuant to the act of June
9 21, 1957 (P.L.390, No.212), referred to as the Right-to-Know
10 Law, or both.
11 (d) Law compliance with regulations and orders.--Each
12 employee and employer shall comply with occupational safety and
13 health standards and all rules, regulations and orders issued
14 pursuant to this act which are applicable to his or her own
15 actions and conduct.
16 (e) State plan for standards.--The Commonwealth shall
17 promulgate a plan for the development and enforcement of
18 occupational safety and health standards with respect only to
19 public employers and employees, in accordance with section 18(b)
20 of the Occupational Safety and Health Act of 1970.
21 Section 6. Regulations.
22 The secretary may promulgate regulations to administer and
23 enforce this act and shall:
24 (1) Provide for the preparation, adoption, amendment or
25 repeal or regulations governing the conditions of employment
26 of general and special application in all workplaces.
27 (2) Provide a method of encouraging employers and
28 employees in their efforts to reduce the number of safety and
29 health hazards arising from undesirable or inappropriate
30 working conditions at the workplace, and of stimulating
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1 employers and employees to institute new, and to perfect
2 existing, programs for providing safe and healthful working
3 conditions.
4 (3) Provide for appropriate reporting procedures by
5 employers with respect to such information relating to
6 conditions of employment as will assist in achieving the
7 objectives of this act.
8 (4) Provide for the frequency, method and manner of
9 making inspections of workplaces without advance notice,
10 provided that in the event of an emergency or unusual
11 situation, the secretary may give advance notice.
12 (5) Provide for the publication and dissemination to
13 employers, employees and labor organizations and the posting,
14 where appropriate, by employers of informational, educational
15 or training materials designed to aid and assist in achieving
16 the objectives of this act.
17 (6) Provide for the establishment of new, and the
18 perfection and expansion of existing, programs for
19 occupational safety and health education for employers and
20 employees and institute methods and procedures for the
21 establishment of a program for voluntary compliance by
22 employers and employees with the requirements of this act and
23 all applicable occupational safety and health standards and
24 regulations promulgated under this act.
25 Section 7. Standards.
26 (a) General rule.--The secretary shall, by regulation, adopt
27 all occupational safety and health standards, amendments or
28 changes adopted or recognized by the Unites States Secretary of
29 Labor under the authority of the Occupational Safety and Health
30 Act of 1970 in order to provide reasonable and adequate
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1 protection to the lives, safety and health of public employees.
2 Subject to subsection (b), the secretary shall promulgate and
3 repeal such regulations as may be necessary to conform to the
4 standards established pursuant to the Occupational Safety and
5 Health Act of 1970. Where no Federal standards are applicable,
6 the secretary shall provide for the development of such State
7 standards as may be necessary in special circumstances.
8 (b) Interstate commerce.--No standards shall be adopted for
9 products distributed or used in interstate commerce with are
10 different from Federal standards for such products unless the
11 standards are required by compelling local conditions and do not
12 unduly burden interstate commerce.
13 (c) Challenge to standard or regulation.--Any person who may
14 be adversely affected by a standard or regulation issued under
15 this act may challenge the validity or application of such
16 standard or regulation by bringing an action for declaratory
17 judgment.
18 Section 8. Variances.
19 (a) Variance procedure.--
20 (1) Any public employer may apply to the secretary for a
21 temporary order granting a variance from a standard or any
22 provision thereof promulgated under this act. A temporary
23 order shall be granted only if the employer files an
24 application that meets the requirements of subsection (b) and
25 establishes all of the following:
26 (i) The employer is unable to comply with a standard
27 by its effective date because of unavailability of
28 professional or technical personnel or of materials and
29 equipment needed to come into compliance with the
30 standard or because necessary construction or alteration
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1 of facilities cannot be completed by the effective date.
2 (ii) The employer is taking all available steps to
3 safeguard employees against the hazards covered by the
4 standard.
5 (iii) The employer has an effective program for
6 coming into compliance with the standard as quickly as
7 practicable.
8 (2) Any temporary order issued under this section shall
9 prescribe the practices, means, methods, operations and
10 processes which the employer must adopt and use while the
11 order is in effect and state in detail the employer's program
12 for coming into compliance with the standard. A temporary
13 order may be granted only after notice to employees and an
14 opportunity for a hearing, provided that the secretary may
15 issue one interim order to be effective until a decision is
16 made on the basis of a hearing. A temporary order shall not
17 be in effect for longer than the period needed by the
18 employer to achieve compliance with the standard or one year,
19 whichever is shorter, except that an order may be renewed not
20 more than twice so long as the requirements of this section
21 are met and an application for renewal is filed at least 90
22 days prior to the expiration date of the order. An interim
23 renewal of an order shall not remain in effect longer than
24 180 days.
25 (b) Contents of application for variance.--An application
26 for a temporary variance order shall contain all of the
27 following:
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.
12 (5) A certification that the employer has informed its
13 employees of the application by giving a copy of the
14 application to their authorized representative, posting a
15 statement giving a summary of the application and specifying
16 where a copy may be examined at the place or places where
17 notices to employees are normally posted, and by other
18 appropriate means. A description of how employees have been
19 informed shall be contained in the certification. The
20 information to employees shall also inform them of their
21 right to petition the secretary for a hearing.
22 (c) Variance for experimental program.--The secretary is
23 authorized to grant a variance from any standard or portion
24 thereof whenever the secretary determines that a variance is
25 necessary to permit an employer to participate in an
26 experimental program approved by the secretary, which is
27 designed to demonstrate or validate new and improved techniques
28 to safeguard the health or safety of workers.
29 (d) Hearing and order.--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 and an opportunity to
3 participate in a hearing. The secretary shall issue a rule or
4 order if the secretary determines on the record, after
5 opportunity for an inspection where appropriate and a hearing,
6 that the proponent of the variance has demonstrated by a
7 preponderance of the evidence that the conditions, practices,
8 means, methods, operations or processes used or proposed to be
9 used by an employer will provide employment and places of
10 employment which are as safe and healthful as those which would
11 prevail if he complied with the standard. The rule or order
12 shall prescribe the conditions the employer must maintain and
13 the practices, means, methods, operations and processes which
14 the employer must adopt and utilize to the extent they differ
15 from the standard in question. A rule or order may be modified
16 or revoked upon application by an employer, any employee or
17 employee representative, or by the secretary on the secretary's
18 own motion, in the manner prescribed for its issuance under this
19 section at any time after six months from the date it was
20 entered.
21 (e) Challenge to standard or regulation.--A person who may
22 be adversely affected by a standard or regulation issued under
23 this subsection may challenge the validity or applicability of
24 such standard or regulation by bringing an action for
25 declaratory judgment.
26 Section 9. Pennsylvania Occupational Safety and Health Review
27 Board.
28 (a) Review board created.--The Pennsylvania Occupational
29 Safety and Health Review Board is hereby created to have and
30 exercise the powers, duties and prerogatives provided by the
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1 provisions of this act. The board shall consist of five persons
2 appointed by the Governor from among persons who by reason of
3 training, education or experience are qualified to carry out the
4 functions of the review board under this act.
5 (b) Terms of members.--Members shall serve terms of four
6 years and until their successors are appointed. The Governor
7 shall designate one of the members to serve as chairperson.
8 (c) Power to hear appeals.--A member of the review board
9 shall hear and rule on appeals from compliance orders,
10 notifications and penalties issued under the provisions of this
11 act. The secretary shall adopt and promulgate rules and
12 regulations with respect to the procedures for review board
13 hearings.
14 (d) Schedule for hearing appeals.--Any board member hearing
15 an appeal or appeals under the provision of this act shall be
16 paid a per diem amount to be determined by the secretary. The
17 members shall alternate the hearing of appeals according to a
18 schedule adopted by the secretary. If a member is unable to hear
19 an appeal, the next available member, in accordance with the
20 schedule, shall hear the appeal. A member shall be selected to
21 hear the appeal within 30 days after the date it was filed.
22 (e) Necessary staff.--Any staff necessary for the purposes
23 of conducting hearings shall be provided by the Department of
24 Labor and Industry.
25 (f) Subpoena power and oaths.--In the conduct of hearings
26 the review board member may subpoena and examine witnesses,
27 require the production of evidence, administer oaths and take
28 testimony and depositions.
29 (g) Ruling on appeal.--After hearing an appeal, the review
30 board member may sustain, modify or dismiss a compliance order
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1 or penalty, provided that decision shall be issued within 120
2 days after the appeal was filed.
3 Section 10. Appeal from review board.
4 Any person, including the secretary, adversely affected or
5 aggrieved by an order of the review board, after all
6 administrative remedies provided by this act have been
7 exhausted, is entitled to judicial review.
8 Section 11. Inspection and investigation powers.
9 (a) General rule.--In order to carry out the purposes of
10 this act, the secretary or a designated agent, upon presenting
11 appropriate credentials to the employer, is authorized to enter
12 without advance notice and at reasonable times any workplace or
13 environment where work is performed by an employee of an
14 employer and to inspect and investigate, during regular working
15 hours and at other reasonable times and in a reasonable manner,
16 any such place of employment and all pertinent conditions,
17 structures, machines, apparatus, devices, equipment and the
18 materials therein and to question privately any employer or
19 employee. Whenever the secretary, proceeding pursuant to this
20 section, is denied admission to any place of employment, the
21 secretary shall obtain a warrant to make an inspection or
22 investigation of the place of employment from any judge of the
23 Commonwealth Court.
24 (b) Witnesses and evidences.--In making inspections and
25 investigations under this section, the secretary may require the
26 attendance and testimony of witnesses and the production of
27 evidence under oath. Witnesses shall be paid the same fees and
28 mileage that are paid witnesses in the courts of this
29 Commonwealth. In case of a failure or refusal of any person to
30 obey such an order, the court of common pleas for the judicial
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1 district wherein the person resides, is found or transacts
2 business shall issue to the person an order requiring the person
3 to appear to produce evidence if asked, and when so ordered, and
4 to give testimony relating to the matter under investigation or
5 in question. A failure to obey an order of the court may be
6 punished by the court as a contempt.
7 (c) Persons to accompany secretary or representative.--
8 Subject to regulations issued by the secretary, a representative
9 of the employer and a representative authorized by the employees
10 shall be given an opportunity to accompany the secretary or an
11 authorized representative during the physical inspection of any
12 workplace for the purposes of aiding the inspection. Where there
13 is no authorized employee representative, the secretary or an
14 authorized representative shall consult with a reasonable number
15 of employees concerning matters of health and safety in the
16 workplace. No employee who accompanies the secretary or an
17 authorized representative on an inspection shall suffer any
18 reduction in wages.
19 Section 12. Inspection and investigation of violations.
20 (a) Request for inspection.--Any employee or authorized
21 employee representative who believes that a violation of an
22 occupational safety or health standard exists or that an
23 imminent danger exists may request an inspection by giving
24 notice to the secretary of a violation or danger. The notice and
25 request shall be in writing, shall set forth with reasonable
26 particularity the grounds for the notice and shall be signed by
27 an employee or representative of employees. A copy of the notice
28 shall be provided by the secretary to the employer or its agent
29 no later than the time of inspection, except that on the request
30 of the person giving notice, the names of individual employees
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1 or representatives of employees shall be kept confidential.
2 (b) Action by secretary.--Whenever the secretary receives a
3 request for inspection and determines that there are reasonable
4 grounds to believe that a violation or danger exists, the
5 secretary shall make an inspection as soon as practicable to
6 determine if a violation or danger exists. The inspection may be
7 limited to the alleged violation or danger. If the secretary
8 determines there are no reasonable grounds to believe that a
9 violation or danger exists, the secretary shall notify the
10 employer, employee or representative of employees in writing of
11 the determination. Notification shall not preclude future
12 enforcement action if conditions change.
13 (c) Notice of violation during inspection.--Prior to or
14 during any inspection of a workplace, any employee or
15 representative of employees employed in the workplace may notify
16 in writing the secretary or any representative of the secretary
17 responsible for conducting the inspection of any violation of
18 this act which the person has reason to believe exists in the
19 workplace. The secretary shall by regulation establish
20 procedures for informal review of any refusal by a
21 representative of the secretary to issue a citation with respect
22 to any alleged violation and shall furnish the employer and the
23 employees or representative of the employees requesting a review
24 a written statement of the reasons for the secretary's final
25 disposition of the case. Notification shall not preclude future
26 enforcement action if conditions change.
27 (d) Summary by secretary.--The secretary is authorized to
28 compile, analyze and publish in either summary or detailed form
29 all reports or information obtained under this section.
30 (e) Rules and regulations.--The secretary shall prescribe
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1 such rules and regulations as the secretary may deem necessary
2 to carry out his responsibilities under this act, including
3 rules and regulations dealing with the inspection of an
4 employer's or owner's establishment.
5 Section 13. Recordkeeping.
6 (a) Employer's duties prescribed by regulation.--In
7 accordance with the secretary's regulations, each employer shall
8 make, keep and preserve and make available to the secretary such
9 records regarding its activities relating to this act as the
10 secretary deems necessary or appropriate for developing
11 information regarding the causes and prevention of occupational
12 accidents and illness. The regulations may include provisions
13 requiring employers to conduct periodic inspections. The
14 secretary also shall issue regulations requiring that employers,
15 through posting of notices, training or other appropriate means,
16 keep their employees informed of their protections and
17 obligations under this act, including the provisions and
18 regulations of this act.
19 (b) Records relating to death and injury.--The secretary
20 shall prescribe regulations requiring employers to maintain
21 accurate records and to make public periodic reports of work-
22 related deaths, injuries and illnesses, other than minor
23 injuries requiring only first aid treatment and not involving
24 lost time from work, medical treatment, loss of consciousness,
25 restriction of work or motion or transfer to another job.
26 (c) Exposure to toxic or harmful agents.--The secretary
27 shall issue regulations requiring employers to maintain accurate
28 records of employee exposures to potentially toxic materials or
29 harmful physical agents which are required to be monitored or
30 measured under any occupational health and safety standard
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1 adopted under this act. The regulations shall provide employees
2 or their representatives with an opportunity to observe
3 monitoring or measuring and have access to the records. The
4 regulations shall make appropriate provisions for each employee
5 or former employee to have access to such records as will
6 indicate the employee's own exposure to toxic materials or
7 harmful physical agents. Each employer shall promptly notify any
8 employee who has been or is being exposed to toxic materials or
9 harmful physical agents in concentrations or at levels which
10 exceed those prescribed by an occupational safety and health
11 standard promulgated under this act and shall inform any
12 employee who is being thus exposed of the corrective action
13 being taken.
14 Section 14. Compliance orders.
15 (a) Issuance.--Whenever the secretary, upon inspection or
16 investigation, determines that an employer has violated a
17 provision of this act or an occupational safety or health
18 standard or regulation promulgated under this act, the secretary
19 shall with reasonable promptness issue a compliance order to the
20 employer. Each compliance order shall be in writing and shall
21 describe the nature of the violation, including a reference to
22 the provisions of this act or the standard, regulation or order
23 alleged to have been violated. The compliance order shall fix a
24 reasonable time for the abatement of the violation.
25 (b) Posting of order.--Each compliance order issued under
26 this section or a copy or copies of the order shall be
27 prominently posted as prescribed in regulations issued by the
28 secretary at or near each place a violation referred to in the
29 compliance order occurred and at other locations within the
30 workplace reasonably accessible to the employees.
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1 Section 15. Enforcement procedures.
2 (a) Notice of order and penalty.--If, after inspection or
3 investigation, the secretary issues a compliance order under
4 section 7, the secretary shall, within a reasonable time after
5 the termination of the inspection or investigation, notify the
6 employer by certified mail of the penalty, if any, proposed to
7 be assessed under section 17. The notification shall inform the
8 employer that it has 15 working days from the receipt of notice
9 within which to notify the secretary that it wishes to contest
10 the compliance order or proposed assessment of penalty. If the
11 employer fails to notify the secretary within 15 days and if no
12 notice is filed by any employee or representative of employees
13 pursuant to subsection (c) within 15 days, the compliance order
14 and the assessment, as proposed, shall be deemed a final order
15 of the secretary and not be subject to review by any court or
16 agency.
17 (b) Notice of failure to correct violation.--If the
18 secretary has reason to believe that an employer has failed to
19 correct a violation for which a compliance order has been issued
20 within the period permitted for correction, the secretary shall
21 notify the employer by certified mail of the failure and of the
22 penalty proposed to be assessed under section 17 by reason of
23 the failure. In the case, however, of a review proceeding
24 initiated by the employer under this section in good faith and
25 not solely for delay or the avoidance of penalties, the period
26 permitted for correction of the violation shall not begin to run
27 until the entry of a final order by the review board.
28 Notification by the secretary shall inform the employer that it
29 has 15 working days from the receipt of the notice within which
30 to notify the secretary that it wishes to contest the
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1 notification or the proposed assessment of penalty. If, within
2 15 days from receipt of notification under this section, the
3 employer fails to notify the secretary that it intends to
4 contest the notification or proposed assessment of penalty, the
5 notification and assessment, as proposed, shall be deemed a
6 final order of the review board and not be subject to review by
7 any court or agency.
8 (c) Action by review board.--If an employer notifies the
9 secretary that it intends to contest a compliance order issued
10 under section 14(a) or a notification issued under subsection
11 (a) or (b) or if, within 15 days after the issuance of a
12 compliance order issued under section 14(a), any employee or
13 employee representative files a notice with the secretary
14 alleging that the period of time fixed in the compliance order
15 for abatement of the violation is unreasonable, the secretary
16 shall immediately advise the review board of the notification,
17 and the review board shall afford an opportunity for a hearing.
18 The review board shall thereafter issue an order, based on
19 findings of fact, affirming, modifying or vacating the
20 secretary's compliance order or proposed penalty or directing
21 other appropriate relief. The order shall become final 30 days
22 after its issuance. Upon a showing by an employer of a good
23 faith effort to comply with the abatement requirements of a
24 compliance order and a showing that abatement has not been
25 completed because of factors beyond the employer's reasonable
26 control, the secretary, after an opportunity for a hearing as
27 provided in this subsection, shall issue an order affirming or
28 modifying the abatement requirements in the compliance order.
29 The rules of procedure prescribed by the secretary shall provide
30 affected employees or employee representatives of affected
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1 employees an opportunity to participate as parties to hearings
2 under this subsection.
3 Section 16. Injunction proceedings.
4 (a) Temporary restraining order.--The Commonwealth Court
5 shall have jurisdiction, upon petition of the secretary,
6 pursuant to the law and general rules, to restrain any
7 conditions or practices in any place of public employment which
8 are such that a danger exists which could reasonably be expected
9 to cause death or serious physical harm immediately or before
10 the imminence of the danger can be eliminated through the
11 abatement procedures otherwise provided for by this act. Any
12 order issued under this section shall require such steps to be
13 taken as may be necessary to avoid, correct or remove the
14 imminent danger and prohibit the employment or presence of any
15 individual in locations or under conditions where the imminent
16 danger exists, except individuals whose presence is necessary to
17 avoid, correct or remove the imminent danger. A temporary
18 restraining order issued without notice shall not be effective
19 for more than five days.
20 (b) Action by inspector.--Whenever and as soon as an
21 inspector concludes that conditions or practices described in
22 subsection (a) exist in any place of public employment, the
23 inspector shall inform the affected employees and employers of
24 the danger and shall further inform them that the inspector is
25 recommending to the secretary that relief be sought.
26 (c) Failure of secretary to seek relief.--If the secretary
27 arbitrarily or capriciously fails to seek relief under this
28 section, any employee who may be injured by reason of the
29 failure, or the authorized employee representative of such
30 employees, may bring an action against the secretary in the
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1 Commonwealth Court to compel the secretary to seek an order and
2 for such further relief as may be appropriate.
3 Section 17. Penalties.
4 (a) Willful or repeated violations.--An employer who
5 willfully or repeatedly violates the requirements of section 4
6 or 5, any occupational health and safety standard promulgated
7 under section 6 or regulations prescribed pursuant to this act
8 may be assessed a civil penalty of not more than $10,000 for
9 each violation.
10 (b) Compliance order for serious violation.--An employer who
11 has received a compliance order for a serious violation of the
12 requirements of section 4 or 5, any occupational health and
13 safety standard promulgated pursuant to section 6 or regulations
14 prescribed pursuant to this act shall be assessed a civil
15 penalty of not more than $1,000 for each violation.
16 (c) Compliance order for lesser violation.--An employer who
17 has received a compliance order for a violation of the
18 requirements of section 4 or 5, any occupational health and
19 safety standard promulgated pursuant to section 6 or regulations
20 prescribed pursuant to this act, which violation has been
21 determined not to be of a serious nature, may be assessed a
22 civil penalty of not more than $1,000 for each violation.
23 (d) Failure to correct violation.--An employer who fails to
24 correct a violation for which a compliance order has been issued
25 under section 15 within the period permitted for its correction,
26 which period shall not begin to run until the date of the final
27 order of the board in the case of any review proceeding under
28 section 16 initiated by the employer in good faith and not
29 solely for delay or avoidance of penalties, may be assessed a
30 civil penalty of not more than $1,000 for each day during which
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1 such failure or violation continues.
2 (e) Violation causing death.--
3 (1) An employer who willfully violates any standard or
4 order promulgated pursuant to section 6 or any regulation
5 adopted pursuant to this act, which violation caused death to
6 any employee, commits a misdemeanor and shall, upon
7 conviction, be sentenced to pay a fine of not more than
8 $10,000 or to imprisonment for not more than six months, or
9 both.
10 (2) If a conviction is for a violation committed after a
11 first conviction, the person shall be sentenced to pay a fine
12 of not more than $20,000 or to imprisonment for not more than
13 one year, or both.
14 (f) Providing advance notice of inspection.--A person who
15 gives advance notice of any inspection to be conducted under
16 this act, without authority from the secretary or a designee,
17 commits a misdemeanor and shall, upon conviction, be sentenced
18 to pay a fine of not more than $1,000 or to imprisonment for not
19 more than six months, or both.
20 (g) False statements.--A person who knowingly makes any
21 false statement, representation or certification in any
22 application, record, report, plan or other document filed or
23 required to be maintained pursuant to this act commits a
24 misdemeanor and shall, upon conviction, be sentenced to pay a
25 fine of not more than $10,000 or to imprisonment for not more
26 than six months, or both.
27 (h) Violation of posting requirements.--An employer who
28 violates any of the posting requirements as prescribed under the
29 provision of this act shall be assessed a civil penalty of not
30 more than $1,000 for each violation.
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1 (i) Refusing entry for investigation or inspection.--An
2 employer who refuses entry to any authorized representative of
3 the secretary while the representative is attempting to conduct
4 an investigation or inspection under this act or in any way
5 willfully obstructs an authorized representative from carrying
6 out an investigation or inspection commits a misdemeanor and
7 shall, upon conviction, be sentenced to pay a fine of not more
8 than $1,000 or to imprisonment for not more than six months, or
9 both.
10 (j) Causing bodily harm to authorized representative.--Any
11 employer or individual who willfully causes bodily harm to any
12 authorized representative of the secretary while the
13 representative is attempting to conduct an investigation or
14 inspection under this act commits a misdemeanor and shall, upon
15 conviction, be sentenced to pay a fine of not more than $10,000
16 or to imprisonment for not more than one year, or both.
17 (k) Authority to assess civil penalties.--The review board
18 shall have authority to assess all civil penalties provided for
19 in this act, giving due consideration to the appropriateness of
20 the penalty with respect to the size of the business of the
21 employer being charged, the gravity of the violation, the good
22 faith of the employer and the history of previous violations.
23 (l) Determination of serious violation.--For the purposes of
24 this act, a serious violation shall be deemed to exist in a
25 place of employment if there is a substantial probability that
26 death or serious physical harm could result from a condition
27 which exists, or from one or more practices, means, methods,
28 operations or processes which have been adopted or are in use,
29 in the place of employment unless the employer did not and could
30 not with the exercise of reasonable diligence know of the
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1 presence of the violation.
2 (m) Disposition of civil penalties.--Civil penalties owed
3 under this act shall be paid to the secretary for deposit in the
4 State Treasury and may be recovered in a civil action in the
5 name of the Commonwealth brought in the Commonwealth Court.
6 (n) Unauthorized disclosure of confidential information.--A
7 person who violates the provisions of section 22 commits a
8 misdemeanor and shall, upon conviction, be sentenced to pay a
9 fine of not more than $1,000 or to imprisonment for not more
10 than one year, or both. In the event that the person is an
11 officer or employee responsible for carrying out the provisions
12 of this act, the officer or employee shall be removed from
13 office or employment upon conviction under this section.
14 Section 18. Discrimination against employees.
15 (a) General rule.--An employer or any other person shall not
16 discriminate against any employee because the employee has filed
17 any complaint or instituted or caused to be instituted any
18 proceeding under or related to this act or has testified or is
19 about to testify in any proceeding or because of the exercise by
20 an employee on the employee's own behalf or on behalf of others
21 of any right afforded by this act.
22 (b) Remedy.--An employee who believes that the employee has
23 been discharged, disciplined or otherwise discriminated against
24 by any person in violation of this section may, within 30 days
25 after a violation occurs, file a complaint with the secretary
26 alleging discrimination. Upon receipt of the complaint, the
27 secretary shall cause investigation to be made as deemed
28 appropriate and shall, if requested, withhold the name of the
29 complainant from the employer. If, upon investigation, the
30 secretary determines that the provisions of this section have
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1 been violated, the secretary shall request the Attorney General
2 to bring an action in the Commonwealth Court against the person
3 or persons alleged to have violated this act. In any such action
4 the Commonwealth Court shall have jurisdiction, for cause shown,
5 to restrain violations of this act and to order all appropriate
6 relief, including reinstatement of the employee to the
7 employee's former position with back pay and benefits.
8 (c) Notice of determination of complaint.--Within 90 days of
9 receipt of a complaint filed under this section, the secretary
10 shall notify the complainant and the complainant's
11 representative by registered mail of the secretary's
12 determination of the complaint.
13 (d) Other rights preserved.--Nothing in this act shall be
14 deemed to diminish the rights of an employee under any law, rule
15 or regulation or under any collective bargaining agreement.
16 Section 19. Research and demonstration projects.
17 The secretary shall conduct research and undertake
18 demonstration projects relating to occupational safety and
19 health issues and problems either within the Department of Labor
20 and Industry or by grants or contracts. The secretary may
21 prescribe regulations requiring employers to measure, record and
22 make reports on exposure of employees to toxic substances which
23 the secretary believes may endanger the health or safety of
24 employees. The secretary shall cooperate with the Director of
25 the National Institute for Occupational Safety and Health of the
26 Department of Health and Human Services in establishing the
27 programs of medical examinations and tests as may be necessary
28 to determine the incidence of occupational illnesses and
29 employee susceptibility to the illnesses. The programs, on the
30 request of the employer, may be paid for by the secretary, and
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1 the secretary shall provide such other assistance as may be
2 required. Information obtained under this act shall be made
3 public without revealing the names of individual workers covered
4 by physical examination or special studies and shall be made
5 available to employers, employees and their respective
6 organizations.
7 Section 20. Education programs.
8 (a) Programs to train personnel.--The secretary shall
9 conduct directly or by grants or contracts education programs to
10 provide an adequate supply of qualified personnel to carry out
11 the purposes of this act and informational programs on the
12 importance and proper use of adequate safety and health
13 equipment.
14 (b) Short-term training.--The secretary is authorized to
15 conduct directly or by grants or contracts short-term training
16 of personnel engaged in work related to the secretary's
17 responsibilities under this act.
18 (c) Additional programs.--The secretary shall provide for
19 the establishment and supervision of programs for the education
20 and training of employers, owners and employees in the
21 recognition, avoidance and prevention of unsafe or unhealthful
22 working conditions in employment covered by this act. The
23 secretary shall consult with and advise owners and employers,
24 employees and organizations representing owners, employers and
25 employees as to effective means of preventing occupational
26 injuries and illnesses.
27 Section 21. Reports to United States Secretary of Labor.
28 In regard to the administration and enforcement of this act
29 the secretary shall make such reports to the United States
30 Secretary of Labor in such form and containing such information
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1 as the Secretary of Labor shall from time to time require.
2 Section 22. Confidentiality of information maintained.
3 All information reported to or otherwise obtained by the
4 secretary or the secretary's representatives or any member of
5 the review board in connection with any inspection or proceeding
6 under this act which contains or might reveal a trade secret
7 shall be considered confidential, provided that the information
8 may be disclosed to other officers or employees concerned with
9 carrying out this act or when relevant in any proceeding under
10 this act. In any such proceedings the secretary, the review
11 board or the court shall issue such orders as may be appropriate
12 to protect the confidentiality of trade secrets.
13 Section 23. Effective date.
14 This act shall take effect in 60 days.
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