PRINTER'S NO. 1542
No. 1246 Session of 1989
INTRODUCED BY REGOLI, JONES, SCANLON, MUSTO, BELAN, STOUT,
RHOADES, PORTERFIELD AND ANDREZESKI, SEPTEMBER 26, 1989
REFERRED TO LABOR AND INDUSTRY, SEPTEMBER 26, 1989
AN ACT
1 Providing for public employee occupational health and safety,
2 for standards and procedures in relation to same; providing
3 further duties of the Department of Labor and Industry;
4 establishing the Public Employee Occupational Safety and
5 Health Review Board and providing for its powers and duties;
6 providing for the establishment of various advisory
7 committees; providing for enforcement and for civil and
8 criminal penalties; and making an appropriation.
9 TABLE OF CONTENTS
10 Chapter 1. Preliminary Provisions
11 Section 101. Short title.
12 Section 102. Declaration of policy.
13 Section 103. Definitions.
14 Chapter 3. Public Employee Health and Safety
15 Section 301. Application of health and safety standards.
16 Section 302. Duties of public employers.
17 Section 303. Powers and duties of department.
18 Section 304. Advisory committee.
19 Section 305. Grants for hazard abatement.
20 Section 306. Work environment inspectors.
1 Section 307. Work environment committees.
2 Section 308. Inspections.
3 Section 309. Recordkeeping.
4 Section 310. Adverse action against employees.
5 Section 311. Right to work under safe conditions.
6 Section 312. Asbestos abatement.
7 Section 313. Public Employee Occupational Safety and
8 Health Review Board.
9 Section 314. Variances.
10 Chapter 5. Enforcement
11 Section 501. Enforcement orders.
12 Section 502. Imminent danger.
13 Section 503. Citations.
14 Section 504. Notice of penalty.
15 Section 505. Proceedings by department.
16 Section 506. Injunctive relief.
17 Section 507. Failure of secretary to act.
18 Section 508. Follow-up inspection.
19 Section 509. Penalties.
20 Section 510. Civil actions.
21 Chapter 11. Miscellaneous Provisions
22 Section 1101. Appropriation.
23 Section 1102. Severability.
24 Section 1103. Repeals.
25 Section 1104. Effective date.
26 The General Assembly of the Commonwealth of Pennsylvania
27 hereby enacts as follows:
28 CHAPTER 1
29 PRELIMINARY PROVISIONS
30 Section 101. Short title.
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1 This act shall be known and may be cited as the Public
2 Employee Occupational Safety and Health Act.
3 Section 102. Declaration of policy.
4 The General Assembly finds and declares as follows:
5 (1) It is a basic right of all employees to work in an
6 environment that is as free from hazards and risks to their
7 safety and health as possible. This right should be afforded
8 to public employees, who should not be exposed to workplace
9 hazards any more than private sector employees.
10 (2) A significant percentage of employees in this
11 Commonwealth are employed by the Commonwealth or by one of
12 its political subdivisions. Many of these public employees
13 perform job functions comparable to those performed by
14 workers in the private sector.
15 (3) A safe place in which to work is economically
16 advantageous to employers. Work-related accidents and
17 injuries, and the absences caused thereby, decrease employee
18 productivity and increase workers' compensation costs. Unsafe
19 workplaces increase the risk of financial liability for
20 injuries to members of the public who frequent public
21 buildings. Occupational illnesses deplete the pool of human
22 resources and increase medical expenditures. For public
23 employees and their dependents, occupational accidents and
24 illnesses pose a serious threat to finances, security and
25 mental and physical well-being.
26 (4) Greater protection of the health and safety of
27 public employees will assist government bodies to deliver
28 needed public services in a safe, efficient and cost-
29 effective manner.
30 (5) Under the Occupational Safety and Health Act of 1970
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1 (Public Law 91-596, 29 U.S.C. § 651 et seq.), Congress deems
2 it necessary to protect the safety and health of workers
3 employed in the private sector. The OSHA Act was enacted to
4 "assure so far as possible every working man and woman in the
5 nation safe and healthful working conditions to preserve our
6 human resources." To provide at least as much protection to
7 public employees as is provided to employees in the private
8 sector by the OSHA Act, the standards and regulations under
9 the OSHA Act should be adopted and applied to public
10 employees. Accordingly, the General Assembly hereby exercises
11 its statutory authority to establish and enforce rules,
12 standards and regulations protecting the health and safety of
13 all employees of this Commonwealth and its political
14 subdivisions.
15 (6) Swift and effective enforcement of the provisions of
16 this act is vital to ensure that the health and safety of
17 public employees is protected.
18 Section 103. Definitions.
19 The following words and phrases when used in this act shall
20 have the meanings given to them in this section unless the
21 context clearly indicates otherwise:
22 "Adverse action." Any action by an employer which adversely
23 affects a worker with respect to any terms or conditions of
24 employment or opportunity for promotion. The term includes, but
25 is not limited to, the action of dismissal, layoff, suspension,
26 demotion, transfer of job or location, reduction in wages,
27 changes in hours or conditions of work or reprimand.
28 "Advisory committee." The Public Employee Safety and Health
29 Advisory Committee.
30 "Authorized employee representative." An employee authorized
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1 by the employees to represent them, or the designated
2 representative of an employee organization recognized or
3 certified to represent the employees. The term includes
4 "employee organization" as defined in section 301(3) of the act
5 of July 23, 1970 (P.L.563, No.195), known as the Public Employee
6 Relations Act.
7 "Board." The Public Employees' Occupational Safety and
8 Health Review Board.
9 "Committee." A work environment committee.
10 "Department." The Department of Labor and Industry of the
11 Commonwealth.
12 "Harmful agent." A substance or condition determined by the
13 department to present a risk to worker health or safety or to
14 present imminent danger of death or serious physical harm to a
15 public employee. The term includes, but is not limited to,
16 radiation (whether ionizing or nonionizing), stress, heat, cold,
17 noise, vibration, repetitive motion, hypobaric pressure,
18 hyperbaric pressure, poor illumination, poor ergonomic design,
19 dust, fumes, biological hazards such as molds and allergens,
20 inadequate ventilation and indoor air pollution. The department
21 shall consult the scientific literature and rely on
22 epidemiologic and case study reports brought to its attention in
23 making such determinations for agents which are not generally
24 recognized as harmful agents.
25 "Hazardous substance." Any chemical or mixture defined as
26 hazardous under section 3 of the act of October 5, 1984
27 (P.L.734, No.159), known as the Worker and Community Right-to-
28 Know Act, and any other substance determined to be hazardous by
29 the secretary. The secretary shall consult the scientific
30 literature and rely on epidemiologic and case study reports
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1 brought to its attention in making such determinations for
2 substances not defined as hazardous under the Worker and
3 Community Right-to-Know Act.
4 "Imminent danger." A hazard or condition which could
5 reasonably be expected to cause death or serious physical harm
6 immediately or before the imminence of the danger can be
7 eliminated through the enforcement procedure under section 501.
8 "Infectious agent." Includes bacteria, viruses, fungi,
9 parasites, rickettsia and protozoa determined by the board or
10 the secretary to cause substantial acute or chronic illness or
11 permanent disability as a direct or indirect result of exposure
12 to the infectious agent by employees whose workplaces include,
13 but are not limited to, hospitals; morgues; laboratories;
14 clinics; prisons; homes or institutions for the aged and the
15 mentally, physically or psychologically impaired; schools; day-
16 care facilities; shelters, zoos or other animal-handling
17 operations; water and waste treatment plants; and those public
18 health and social service employees who may be exposed to
19 infectious agents in the course of home or office visits. The
20 department shall consult the scientific literature and rely on
21 epidemiologic and case study reports brought to its attention in
22 making such determinations for agents which are not generally
23 recognized as infectious agents.
24 "Interested person." Includes any affected person; a
25 representative of an organization of employers or employees; a
26 nationally recognized standards-producing organization; a State
27 board, commission or department; a professional organization
28 concerned with occupational safety or health; a representative
29 or a public interest organization; or a member of a department
30 or college or university engaged in research related to
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1 occupational safety or health.
2 "Occupational safety and health specialist." An individual
3 who, because of professional or technical education, training or
4 experience, understands the health and safety risks and the
5 necessary precautions associated with the hazardous substances,
6 harmful agents, infectious agents and safety hazards which the
7 person is hired to address and to which public employees are
8 exposed. The department shall promulgate regulations specifying
9 criteria for education, training and experience.
10 "OSHA." The Occupational Safety and Health Administration.
11 "OSHA Act." The Occupational Safety and Health Act of 1970
12 (Public Law 91-596, 29 U.S.C. § 651 et seq.).
13 "Public employee." An individual who engages to furnish his
14 services subject to the direction and control of a public
15 employer.
16 "Public employer." The Commonwealth and its political
17 subdivisions, including school districts, and any office, board,
18 commission, authority, agency or instrumentality thereof; any
19 multistate authority; any regional transportation authority; or
20 anyone contracting to perform services for the Commonwealth or
21 any political subdivision or instrumentality thereof whose
22 employees are not protected by the OSHA Act.
23 "Right-to-Know Act." The act of act of October 5, 1984
24 (P.L.734, No.159), known as the Worker and Community Right-to-
25 Know Act.
26 "Recognized hazard." Any hazardous substance, harmful agent,
27 infectious agent or safety hazard as defined in this act.
28 "Safety hazard." A hazard that arises out of or is
29 encountered in the course of employment and presents a risk to
30 employee safety.
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1 "Secretary." The Secretary of Labor and Industry of the
2 Commonwealth.
3 "Work environment inspector." An occupational safety and
4 health specialist hired for the purpose of enforcing the
5 provisions of this act.
6 "Workplace." A building site, structure, mobile vehicle or
7 other premises or location, whether indoors or outdoors, in
8 which an employee is engaged in work.
9 CHAPTER 3
10 PUBLIC EMPLOYEE HEALTH AND SAFETY
11 Section 301. Application of health and safety standards.
12 (a) Application.--This act applies to all public employers,
13 public employees and places of public employment in this
14 Commonwealth. This act and the regulations promulgated under it
15 do not apply to employers whose operations are covered by OSHA
16 or to employees of the Federal Government.
17 (b) Workers' compensation.--Nothing in this act shall be
18 construed to supersede or affect any workers' compensation
19 statute or to enlarge, diminish or affect common law or
20 statutory rights, duties or liabilities or employers or
21 employees with respect to injuries, disease or death of
22 employees arising out of and in the course of employment.
23 Section 302. Duties of public employers.
24 (a) Duties.--A public employer shall do all of the
25 following:
26 (1) Furnish, to each of its public employees, employment
27 and a workplace which are safe and healthful for the
28 employees. Such employment and workplace shall be free from
29 recognized hazards that cause or may cause death, serious
30 physical harm or illness to employees.
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1 (2) Comply with the safety and health standards
2 promulgated under this act. These requirements shall be
3 included in all leases of the employer and in all contracts
4 with individuals and contractors who provide services to the
5 employer.
6 (3) Assist the work environment inspector in the
7 performance of his duties by supplying or making available
8 information dealing with exposure reports, general safety and
9 health records and other records required by this act which
10 are necessary to comply with the purposes and goals of this
11 act.
12 (4) Provide information to employees, their authorized
13 representatives and committee members in the following ways:
14 (i) Posting information regarding protections and
15 obligations of employees under occupational safety and
16 health laws at areas in the workplace that are easily
17 accessible to all employees.
18 (ii) Posting prominently each citation issued under
19 this act, or a copy or copies thereof, at or near each
20 place a violation referred to in the notice of violation
21 occurred and at areas in the workplace that are easily
22 accessible to all employees.
23 (iii) Providing timely access to all industrial
24 hygiene information and other surveys and reports.
25 Whenever a work environment inspector or any other
26 representative of the employer is engaged in activities
27 related to the monitoring, measuring and other means of
28 assessment conducted to assess employee exposure to
29 hazards, the inspector or employer representative shall
30 be accompanied by employee representatives and committee
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1 members as provided in section 308.
2 (iv) Allowing access by employees and their
3 representatives to accurate records of employee exposures
4 to hazardous substances, infectious agents, harmful
5 agents or safety hazards.
6 (v) Notifying any employee who has been or is being
7 exposed to hazardous materials, harmful agents or
8 infectious agents, and informing any employee so exposed
9 of corrective action being taken.
10 (vi) Allowing access by employees and their
11 representatives to relevant medical records and posting a
12 summary of relevant medical data in a timely manner.
13 (5) Consulting and working cooperatively with the
14 committees at the workplace for the purpose of resolving
15 concerns on matters of health, safety and welfare at the
16 workplace. Every public employer shall be responsible for
17 providing the committee with any information the employer
18 receives pursuant to section 5 of the Right-to-Know-Act, and
19 also for furnishing any information requested by the
20 committee under rights guaranteed in this act.
21 (6) Providing education and training for employees
22 exposed to hazardous substances, harmful agents, infectious
23 agents and safety hazards with respect to the hazardous
24 substances, harmful agents, infectious agents and safety
25 hazards found in their workplace, pursuant to regulations
26 promulgated by the secretary. Employees shall receive normal
27 wages and benefits from the employer while attending such
28 programs. Additional instruction shall be provided whenever
29 the potential for exposure to hazardous substances, harmful
30 agents, infectious agents or safety hazards is altered or
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1 whenever new information is received by the employer
2 concerning the hazards of the substances, agents or safety
3 hazards.
4 (b) Prohibitions.--A public employer shall not:
5 (1) Occupy, maintain or permit a public employee to be
6 in a workplace that is not safe and healthful.
7 (2) Interfere with an inspection by a work environment
8 inspector.
9 Section 303. Powers and duties of department.
10 (a) Purpose.--The department is charged with the
11 responsibility of promulgating and enforcing health and safety
12 rules, regulations and standards to protect the health and
13 safety of workers covered by this act.
14 (b) Powers and duties enumerated.--The powers and duties of
15 the department in relation to this act include, but are not
16 limited to, the following:
17 (1) Taking such action as necessary to enforce this act
18 in a prompt and effective manner, including, but not limited
19 to, the hiring of personnel.
20 (2) Within one year, promulgating such rules and
21 regulations as necessary to administer and enforce all
22 sections of this act. Substantive regulations governing
23 exposure levels and work conditions shall be at least as
24 effective as OSHA standards addressing the same issues.
25 (3) Adopt all standards promulgated by OSHA which are in
26 effect on the effective date of this act and adopting all
27 standards adopted by OSHA in the future. Interested persons
28 may petition the department to adopt additional regulations
29 under this paragraph.
30 (4) Either alone or in conjunction with the State
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1 Workmen's Insurance Board or the Department of Health,
2 prepare and maintain morbidity and accident statistics
3 relating to public employees.
4 (5) Providing assistance to persons concerned with
5 occupational health and safety and providing services to
6 assist committees, employers and employees in maintaining
7 standards for the protection of the health and safety of
8 public employees.
9 (6) Promoting or conducting studies and research
10 projects in connection with problems relating to the health
11 and safety of public employees.
12 (7) Conducting educational programs, including seminars
13 and courses of training for promoting the health and safety
14 of public employees and for improving the qualifications of
15 persons involved in the promotion of occupational health and
16 safety.
17 (8) Appointing advisory committees to assist in the
18 administration of this act.
19 (9) Making grants for any of the purposes mentioned in
20 this section.
21 (10) Promulgating a plan for the development and
22 enforcement of occupational safety and health standards with
23 respect to public employers and employees.
24 (11) Adopting health and safety standards and
25 promulgating rules and regulations for hazardous substances,
26 harmful agents, infectious agents and safety hazards,
27 regardless of whether standards and regulations have been
28 enacted or proposed by OSHA or other Federal governmental
29 agencies, or by State or local health codes. Interested
30 persons may petition the secretary to adopt standards and
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1 promulgate regulations under this paragraph.
2 (12) In the event of an emergency or unusual situation,
3 providing for an emergency temporary standard to take
4 immediate effect upon publication in newspapers or general
5 circulation in Philadelphia, Pittsburgh, Harrisburg, Wilkes-
6 Barre, Scranton and Erie, in accordance with 1 Pa. Code §
7 13.74 (relating to effectiveness prior to publication), if
8 the department deems that:
9 (i) Employees are exposed to grave danger from
10 exposure to substances or agents determined to be toxic
11 or physically harmful or from new hazards.
12 (ii) Such emergency standards are necessary to
13 protect employees from such danger.
14 Such emergency standards shall be in effect no longer than
15 120 days, or, if renewed in compliance with this section, not
16 longer than 60 additional days. On or before the expiration
17 date of the emergency standards or renewal thereof, the
18 department shall promulgate regulations to replace the
19 emergency temporary regulations.
20 (13) In accordance with 1 Pa. Code Ch. 7 (relating to
21 procedure for adoption or change of regulations),
22 promulgating such rules and regulations as may be deemed
23 necessary to carry out the purposes and responsibilities to
24 enforce the provisions of this act.
25 (14) Engaging in inspections and investigations and
26 taking necessary action to ensure compliance by public
27 employers with the provisions of this act and rules,
28 regulations and standards established by the secretary.
29 (15) Employing assistants, experts, inspectors, hearing
30 officers, consultants, occupational safety and health
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1 specialists, and other employees sufficient to carry out the
2 purposes of this act.
3 (16) Collect, maintain and make available the following
4 statistics for each public employer:
5 (i) The number of inspections requested.
6 (ii) The number of inspections completed.
7 (iii) The number of citations issued and the number
8 of violations involved.
9 (iv) The number and amount of penalties assessed.
10 (17) Within two years, promulgating regulations which
11 provide for the elimination of all asbestos brakes and clutch
12 facings in all vehicles owned, leased or otherwise used by
13 the Commonwealth and its political subdivisions.
14 (18) Promulgating regulations providing timely access to
15 all industrial hygiene and other surveys and reports. Public
16 employers shall provide the opportunity for employees and
17 their representatives to walk around with work environment
18 inspectors and all representatives of the employer engaged in
19 activities related to the monitoring, measuring and other
20 means of assessment in order to observe monitoring, measuring
21 and other means of assessment conducted to assess employee
22 exposure to hazards pursuant to standards promulgated under
23 this act.
24 (19) Promulgating regulations or standards requiring
25 proper work procedures, employee training and provision of
26 any necessary vaccinations or inoculations at employer
27 expense for any employee regularly exposed to infectious
28 diseases in the course of his employment.
29 (20) Promulgating recommendations for safe staffing
30 patterns for firefighting and correctional personnel and
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1 individuals employed in mental health or mental retardation
2 facilities to insure the public safety and protect the health
3 and lives of the employees performing those services. In
4 order to carry out this paragraph, all of the following shall
5 apply:
6 (i) The secretary shall appoint a five-member
7 Firefighters Safety Advisory Committee comprised of
8 members knowledgeable in fire safety, including two
9 members from affected bargaining units who have been
10 designated by the relevant employee representative, for
11 the purpose of recommending standards of adequate
12 staffing levels which will insure the safety of
13 firefighting personnel covered by this act. Before making
14 its recommendations, the committee shall consider such
15 factors as community size, population and building
16 patterns. The committee shall make its recommendations
17 and deliver its final report not later than one year
18 after the effective date of this act. The secretary shall
19 review the report and promulgate regulations establishing
20 safe staffing patterns for firefighting individuals
21 employed in cities of the first and second class within
22 90 days of receipt of the committee's report.
23 (ii) The secretary shall appoint a five-member
24 Safety Advisory Committee for Correctional Facilities
25 comprised of members knowledgeable in corrections,
26 including two members from affected bargaining units who
27 have been designated by the relevant employee
28 representative, for the purpose of recommending standards
29 of adequate staffing levels which will insure the safety
30 of correctional personnel covered by this act. The
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1 committee shall make its recommendations and deliver its
2 final report to the secretary not later than one year
3 after the effective date of this act.
4 (iii) The secretary shall appoint a five-member
5 Safety Advisory Committee for Mental Health and Mental
6 Retardation Facilities comprised of members knowledgeable
7 in mental health and retardation, including two members
8 from affected bargaining units who have been designated
9 by the relevant employee representative, for the purpose
10 of recommending standards of adequate staffing levels
11 which will insure the safety of employees employed in
12 such facilities covered by this act. The committee shall
13 make its recommendations and deliver its final report to
14 the secretary not later than one year after the effective
15 date of this act.
16 Section 304. Advisory committee.
17 (a) Purpose.--The Public Employee Safety and Health Advisory
18 Committee shall be established to provide advice and assistance
19 to the department in fulfilling its responsibilities to
20 administer and enforce this act.
21 (b) Duties enumerated.--The advisory committee shall:
22 (1) Recommend standards, rules and regulations for
23 promulgation by the secretary.
24 (2) Review all standards, rules and regulations proposed
25 by the secretary pursuant to section 303.
26 (3) Review records kept by the secretary in accordance
27 with section 303.
28 (4) Take up such other matters as it deems appropriate.
29 (c) Membership.--The advisory committee shall consist of 20
30 members appointed by the Governor for a term of four years each.
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1 One member shall be appointed from each of the following
2 categories: fire service, fire service employees,
3 municipalities, municipal employees, county governments, county
4 government employees, State government, State government
5 employees, correctional institutions, correctional institution
6 employees, local school boards, local school board employees,
7 law enforcement, law enforcement employees, State hospitals and
8 State hospital employees. Four members shall represent the
9 public. The advisory committee shall select a chairperson from
10 its own members. Members shall be selected on the basis of their
11 experience and competence in the field of occupational safety
12 and health. In appointing employee members of the advisory
13 committee, the Governor shall select these members from a list
14 of candidates submitted by the relevant collective bargaining
15 agent.
16 (d) Meetings.--The advisory committee shall meet at least
17 every two months. The chairperson shall serve a term of two
18 years.
19 (e) The members of the advisory committee shall serve
20 without compensation but shall be entitled to reimbursement for
21 reasonable and necessary expenses, in accordance with the rules
22 of the Executive Board.
23 Section 305. Grants for hazard abatement.
24 (a) General rule.--The department shall receive, review and
25 act upon applications for funding of capital projects designed
26 to abate occupational health and safety hazards. The department
27 shall have the authority to fund up to 75% of the cost of any
28 capital abatement project necessary to comply with an order
29 issued by the secretary under this act.
30 (b) Applications.--The department may require, as part of an
19890S1246B1542 - 17 -
1 application, such information as it deems necessary and shall
2 act upon the application within a reasonable time. The
3 department shall furnish the Budget Secretary, the Auditor
4 General, the President pro tempore of the Senate and the Speaker
5 of the House of Representatives with a copy of each application
6 within three days following receipt thereof by the secretary.
7 (c) Factors determining recipients of grants.--In
8 determining which applicants shall receive grants from the fund
9 and the amount of funding, the department shall consider the
10 following factors:
11 (1) The degree of possible physical harm which the
12 hazard to be abated could inflict on the public employees and
13 other citizens at risk.
14 (2) The imminent nature of the possible infliction of
15 harm.
16 (3) The number of public employees and other citizens at
17 risk.
18 (4) The ability of the applying public employer to fund
19 the capital abatement project out of its own funds.
20 (5) The total amount of debt for capital construction
21 projects for which the applying public employer is
22 responsible and the ability of the applying public employer
23 to meet its annual debt service.
24 (d) Duty to abate violation.--The fact that a public
25 employer has applied for funds pursuant to this act shall not
26 relieve that employer of the obligation to abate a violation of
27 this act.
28 Section 306. Work environment inspectors.
29 (a) Appointment.--The department shall appoint work
30 environment inspectors to ensure that the provisions of this act
19890S1246B1542 - 18 -
1 are adequately enforced. Hiring and employment of inspectors
2 shall be accomplished and conducted in accordance with the
3 applicable provisions of the act of August 5, 1941 (P.L.752,
4 No.286), known as the Civil Service Act.
5 (b) Duties.--Under the direction of the department, the
6 duties of inspectors shall include, but not be limited to, the
7 following:
8 (1) At any time, with or without prior notification, to
9 enter and inspect any premises or workplace and take any
10 samples and photographs and make any examinations the
11 inspector considers necessary to accomplish the purposes and
12 goals of this act. In the event that entry is denied, the
13 inspector shall notify the department, which may compel such
14 entry through the appropriate legal process. The department
15 may secure an order compelling entry by petitioning the
16 Commonwealth Court to grant such petition upon a showing that
17 entry has been denied.
18 (2) To require the employer to produce, for inspection
19 by the work environment inspector, books, records, documents
20 or any other material maintained by the employer, to assist
21 the inspector in making determinations and in enforcing this
22 act.
23 (3) To conduct private interviews with, or solicit
24 statements from, employees.
25 (4) To perform all other duties as authorized by the
26 secretary.
27 (c) Coverage under disability benefits law.--Work
28 environment inspectors shall be entitled to benefits under the
29 act of June 28, 1935 (P.L.477, No.193), referred to as the
30 Enforcement Officer Disability Benefits Law.
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1 (d) Cooperation.--Work environment inspectors shall
2 cooperate with the work environment committees.
3 Section 307. Work environment committees.
4 (a) Purpose and establishment.--To best assure that the
5 health and safety of the public employees of this Commonwealth
6 are protected, work environment committees, consisting of
7 representatives of employees and employers, shall be established
8 under this section. Nothing in this section shall diminish the
9 employer's responsibility to assure a safe and healthful work
10 environment.
11 (b) Formation.--An employer, except as provided in
12 subsection (c), shall cause a work environment committee to be
13 established:
14 (1) at a workplace where at least 25 or more employees
15 are regularly employed; and
16 (2) at an individual workplace or at classes of
17 workplaces which the department may designate.
18 (c) Exemption.--
19 (1) Notwithstanding subsection (b), the department may
20 designate individual workplaces or classes of workplaces
21 where a work environment committee is not required to be
22 established until the number of employees exceeds 50.
23 (2) Public employers employing more than 400 employees
24 who are covered by this act and who are employed at more than
25 15 workplaces maintained by the employer may apply to the
26 department for a modification from the requirements of
27 subsections (a) and (b). It shall be the employer's
28 responsibility to submit to the department for approval an
29 alternative plan for the formation of work environment
30 committees, which plan shall otherwise conform to the intent
19890S1246B1542 - 20 -
1 of this section. In considering the alternative plan of an
2 employer, the department shall solicit and consider
3 evaluations of the plan from the authorized employee
4 representative.
5 (d) Small units.--Public employers who employ fewer than 25
6 employees, regardless of the number of workplaces maintained by
7 the employer, shall cause one employee to be designated as a
8 work environment representative. The work environment
9 representative shall represent employees of the employer
10 employed at all workplaces.
11 (e) Membership.--
12 (1) A work environment committee shall consist of not
13 less than four nor more than 12 persons as follows:
14 (i) For 25 through 100 employees - 4 members.
15 (ii) For 101 through 400 employees - 6 members.
16 (iii) For each 100 employees beyond 400 - 2
17 additional members. Additional members under this
18 subparagraph may not exceed 12.
19 (2) Membership shall be equally divided between
20 employee-selected members and employer-selected members.
21 (3) Public employee members of work environment
22 committees shall be appointed by the employee organizations
23 for the employees at the workplace. If there is more than one
24 bargaining agent, employee members shall be selected from the
25 three largest bargaining agents in accordance with
26 regulations promulgated by the department. If there is no
27 employee organization, the public employees shall directly
28 elect the members of the committee.
29 (4) The employer shall post prominently in the workplace
30 the names of all committee members.
19890S1246B1542 - 21 -
1 (f) Powers and duties.--The powers and duties of work
2 environment committees shall include, but not be limited to, the
3 following:
4 (1) Regularly inspecting the workplace to identify
5 hazardous conditions and to check for compliance with the
6 general intent of this act and the standards and regulations
7 promulgated hereunder.
8 (2) Receiving, considering and disposing of concerns and
9 complaints respecting the safety and health of the employees.
10 (3) Maintaining records in connection with the receipt
11 and disposition of concerns and complaints and other
12 committee activities.
13 (4) Investigating imminent danger situations, accidents
14 and unusual environmental conditions.
15 (5) When it determines that an imminent danger exists,
16 ordering the dangerous activity to cease and requesting the
17 immediate presence of a work environment inspector. Once
18 activity has ceased, it may not resume until the work
19 environment inspector deems it safe. An affected party may
20 appeal the determination of the work environment inspector to
21 the board. In the event the committee is unavailable, either
22 of the cochairpersons of the committee may take action under
23 this paragraph.
24 (6) Reviewing health and safety records to monitor
25 incidents of accidents and illnesses and to identify problem
26 areas.
27 (7) Developing and promoting measures to protect the
28 safety, health and welfare of individuals in the workplace
29 and checking the effectiveness of those measures.
30 (8) Cooperating with a work environment inspector
19890S1246B1542 - 22 -
1 exercising duties under this act.
2 (9) Developing and promoting programs for education and
3 information concerning safety and health in the workplace.
4 (10) Suffering no loss in pay, benefits or accrual of
5 seniority for time spent on committee business.
6 (11) Receiving from the public employer, at least 60
7 days in advance of implementation, notice concerning a change
8 in workplace technology or process or an introduction into
9 the workplace of a hazardous substance, harmful agent,
10 infectious agent or safety hazard.
11 (12) Developing medical testing for work-related
12 illnesses or disabilities which may arise out of or in the
13 course of employment, including illnesses or disabilities
14 resulting from or contributed to by exposure to hazardous
15 substances, harmful agents, infectious agents or safety
16 hazards. The department shall promulgate regulations
17 necessary to protect the confidentiality of employees.
18 (g) Meetings.--
19 (1) Committees shall hold regular meetings at least once
20 each month. The meetings of a committee shall be held during
21 ordinary working hours unless otherwise agreed upon.
22 Additional meetings shall be held as necessary.
23 (2) There shall be two committee cochairpersons, one
24 selected by employee members of the committee and one
25 selected by employer members of the committee.
26 (3) Decisions shall be made by a majority of committee
27 members present and voting. In case of a deadlock, a work
28 environment inspector shall be called in to resolve the
29 issue.
30 (4) Minutes of all meetings shall be taken, and the
19890S1246B1542 - 23 -
1 approval of each cochairperson shall be indicated by
2 signature.
3 (5) A copy of the minutes shall be posted prominently in
4 the workplace.
5 (6) Members of committees shall suffer no loss in wages,
6 benefits or seniority for time spent on committee business.
7 (h) Training.--Every committee member shall be entitled to
8 not less than 24 hours of occupational health and safety
9 training annually. Training shall be provided at employer
10 expense. The form, nature and location of the training shall be
11 approved by the committee. Participating employees shall receive
12 their regular rate of pay and benefits while attending such
13 training.
14 (i) Nonliability.--The bargaining representatives and work
15 environment committees, and individual members of such
16 committees, shall not be held liable for any work-connected
17 injuries, disabilities or diseases which may be incurred by
18 employees.
19 (j) Work environment representative.--
20 (1) A public employer shall cause an employee to be
21 designated as the work environment representative:
22 (i) at a workplace where a work environment
23 committee is not required but where five or more
24 employees are regularly employed; and
25 (ii) at an individual workplace or classes of
26 workplaces which the board may designate.
27 (2) The work environment representative shall be
28 appointed by the employee organization recognized or
29 certified as the employee representative (bargaining agent)
30 for the employees at the workplace. In the event that there
19890S1246B1542 - 24 -
1 is more than one bargaining agent, the work environment
2 representative shall be appointed by the largest bargaining
3 agent. In the absence of a recognized or certified employee
4 representative, the employees shall elect the work
5 environment representative. The employer shall post
6 prominently in the workplace the name of the work environment
7 representative.
8 (3) The work environment representative shall, in
9 cooperation with a representative of the employer, perform
10 the same duties and have the same powers and rights as set
11 out for the work environment committee in subsection (e).
12 (4) A work environment representative shall be entitled
13 to not less than 24 hours of occupational health and safety
14 training annually. Training shall be provided at employer
15 expense. The form, nature and location of the training shall
16 be acceptable to the representative who receives it.
17 (5) The work environment representative shall not be
18 held liable for a work-connected injury, disability or
19 disease which may be incurred by an employee.
20 Section 308. Inspections.
21 (a) Request for inspection.--Any person who believes that a
22 violation of a safety or health standard rule or regulation
23 exists, or that there is a threat of harm to an employee's
24 health or safety, may request an inspection by giving notice to
25 the department of the violation or danger.
26 (b) Manner of request.--Requests for inspections may be made
27 orally or in writing and shall set forth the grounds for the
28 request. The department shall, upon request of the complaining
29 party, keep confidential the name of the person making the
30 complaint.
19890S1246B1542 - 25 -
1 (c) Action on request.--Whenever the department receives a
2 request for inspection of an imminent danger or where the
3 department is aware of the likelihood of an imminent danger, an
4 inspection shall be made immediately. In all other cases,
5 inspections shall be made as soon as possible, but at least
6 within 72 hours, if the department determines there are
7 reasonable grounds to believe that a recognized hazard exists.
8 If the department determines there are no reasonable grounds to
9 believe that a recognized hazard exists, it shall notify the
10 employees or the representative of the employees, in writing, of
11 such a determination within five days of a request for an
12 inspection. The department shall provide, to the employee's
13 representative and to the committee and the employer, a copy of
14 the inspection report and any order or agreements made to the
15 individual making the complaint. Prior to or during any
16 inspection of a workplace, any employees or representatives of
17 employees employed in such workplace may notify the department
18 or any representative thereof responsible for conducting the
19 inspection, in writing, of any violation of this act which they
20 have reason to believe exists in such workplace. The department
21 shall, by regulation, establish procedures for informal review
22 of any refusal by its representative to perform an inspection or
23 issue a citation with respect to any such alleged violation and
24 shall furnish the employees or representative of employees
25 requesting such review a written statement of the reasons for
26 the department's final disposition of the case.
27 (d) Inspection without notice.--Inspections may be made
28 without any notice to the employer or the employees.
29 (e) Accessibility of locations.--Inspectors of the
30 department shall have immediate access to any location in which
19890S1246B1542 - 26 -
1 there is a suspected hazard or condition for the purposes of
2 conducting an inspection.
3 (f) Intermittent inspections.--The department shall make a
4 determination as to those occupations and workplaces where there
5 is a possibility of health or safety hazards to employees or the
6 public and shall conduct regular unannounced inspections of
7 these workplaces.
8 (g) Escort of inspector.--A representative of the employer
9 and an authorized employee representative shall accompany the
10 inspector for the entire inspection whenever the inspector
11 conducts an inspection in accordance with this act. In addition,
12 the work environment committee may designate one committee
13 member to accompany the inspector, the representative of the
14 employer and the authorized employee representative on any or
15 all parts of the inspection which address, but are not limited
16 to, work areas and processes of which the committee member or
17 committee members have firsthand knowledge. The authorized
18 employee representatives and designated committee members shall
19 attend all opening, interim and closing conferences pertaining
20 to the inspection. Authorized employee representatives and
21 committee members shall receive full employment benefits for all
22 time spent on such activities.
23 (h) Inspection regardless of complaint.--The authority of
24 the department to inspect a premises pursuant to an employee
25 complaint shall not be limited to the alleged violation
26 contained in the complaint. The department may inspect any other
27 areas of the premises.
28 (i) Inspection of public employer's premises.--The
29 department may, upon its own initiative, conduct an inspection
30 of any premises occupied by a public employer.
19890S1246B1542 - 27 -
1 (j) Subpoena.--In making inspection and investigations under
2 this act, the secretary may require the attendance and testimony
3 of witnesses and the production of evidence under oath.
4 Witnesses shall be paid the same fees and mileage that are paid
5 witnesses in the courts of this Commonwealth. In case of
6 contumacy or failure or refusal of a person to obey an order, a
7 court of competent jurisdiction shall have jurisdiction to issue
8 to the person an order requiring the person to appear to produce
9 evidence, if asked, and, when ordered, to give testimony
10 relating to the matter under investigation or in question.
11 Failure to obey an order of the court may be punishable by the
12 court as a contempt.
13 Section 309. Recordkeeping.
14 (a) Records required.--In accordance with the department's
15 regulations, each public employer shall make, keep and preserve,
16 and make available to the department, the records regarding its
17 activities relating to this act as the department deems
18 necessary or appropriate for developing information regarding
19 the causes and prevention of occupations accidents and illness.
20 The regulations may include provisions requiring public
21 employers to conduct periodic inspections. The department shall
22 also issue regulations requiring that public employers, through
23 posting of notices, training or other appropriate means, keep
24 their employees informed of their rights to protection.
25 (b) Medical problems.--The department shall prescribe
26 regulations requiring public employers to maintain accurate
27 records and to make public, monthly reports and biannual
28 summaries of work-related deaths and injuries and illnesses,
29 medical treatment, loss of consciousness, assaults on employees,
30 restrictions of work or motion, or transfers to other jobs.
19890S1246B1542 - 28 -
1 Public employers, the authorized representative of the employees
2 and the committee shall, upon request, have the rights to
3 examine and copy any and all such reports.
4 (c) Exposure.--The department shall issue regulations
5 requiring employers to maintain accurate records of employee
6 exposures to hazardous substances, harmful agents, infectious
7 agents or safety hazards. The regulations shall make appropriate
8 provisions for each employee or former employee to have access
9 to his exposure records. These requirements shall be at least as
10 effective as those established in the Right-to-Know Act. A
11 public employer shall immediately notify any public employee who
12 has been or is being exposed to hazardous substances, harmful
13 physical agents or infectious agents. Public employees exposed
14 to such hazards shall be informed by the employer of the
15 corrective action proposed and the time limit for
16 implementation, and shall immediately be scheduled for
17 participation in the medical surveillance program.
18 Section 310. Adverse action against employees.
19 (a) Prohibition.--No adverse action shall be taken against
20 any public employee:
21 (1) by reason of the employee's participation in or
22 association with any functions of a committee;
23 (2) by reason of the employee's inquiry about or
24 utilization of any rights or responsibilities he may have
25 under this act; or
26 (3) for any other reason having to do with exercising
27 any rights granted under this act.
28 (b) Presumption.--Where an adverse action is taken against
29 any employee who has, in the prior 12 months, in any way been
30 involved with the enforcement or protection of any rights
19890S1246B1542 - 29 -
1 granted under this act, it shall be presumed that the action was
2 taken in violation of this act, and it shall be the burden of
3 the employer to prove that the action was not taken for improper
4 reasons described in subsection (a) or for reasons otherwise
5 contrary to the policies and provisions of this act.
6 (c) Complaints.--An employee who believes that adverse
7 action has been taken against him in violation of this act may,
8 within 180 days after he becomes aware of such action, file a
9 complaint with the department alleging the adverse action. Upon
10 receipt of the complaint, the department shall, within 30 days
11 of receipt of such complaint, make an investigation and shall,
12 if requested, withhold the name of the complainant from the
13 employer. Whenever the department determines that this act has
14 been violated, it shall bring an action in Commonwealth Court
15 against the employer alleged to have violated this act. In the
16 event of a finding of adverse action, the employer shall:
17 (1) Cease the adverse action and reinstate the employee
18 to his former employment without loss of pay, contractual and
19 noncontractual rights, or benefits.
20 (2) Pay to the worker any wages and benefits the worker
21 would have earned had he not had adverse action taken against
22 him.
23 (3) Remove any reprimand or other reference to the
24 matter from the employer's records on the employee.
25 Section 311. Right to work under safe conditions.
26 (a) General rule.--
27 (1) A public employee may not be compelled to work at a
28 workplace if all of the following apply:
29 (i) A reasonable individual would believe, in good
30 faith, that performing assigned work at the workplace
19890S1246B1542 - 30 -
1 would involve a danger of death or serious injury or
2 illness.
3 (ii) The public employee is unable to obtain
4 correction of the condition by the employer.
5 (iii) There is insufficient time to eliminate the
6 danger through resort to regular statutory or contractual
7 enforcement procedures.
8 (2) In addition, a public employee may not be compelled
9 to work at a workplace or to perform a specific assignment,
10 if the work environment committee has exercised its authority
11 under section 307(f)(5).
12 (3) If paragraph (1) or (2)applies, a public employee
13 may refuse to perform assigned duties in the workplace until
14 the work environment inspector has investigated the matter
15 and advised the employee, in writing, that a hazard no longer
16 exists.
17 (b) Temporary assignments.--Notwithstanding any other
18 provision of this act, temporary assignment to alternative work
19 shall be at no loss of pay, benefits, or contractual or
20 noncontractual rights to the employee until the matter mentioned
21 in subsection (a) is resolved, and shall be deemed not to
22 constitute adverse action within the meaning of this act.
23 Section 312. Asbestos abatement.
24 The department shall establish an asbestos abatement program
25 as described in this section.
26 (a) Duties of public employers.--Public employers shall,
27 within 18 months from the effective date of this act, perform
28 the following:
29 (1) Conduct building inspections to determine the
30 presence of asbestos hazards in the workplace. Inspections
19890S1246B1542 - 31 -
1 shall be conducted by OSHA specialists.
2 (2) Maintain records of findings.
3 (3) Notify the public employees, authorized employee
4 representatives and committees of the results of the
5 inspection and release to these individuals and groups the
6 records from the inspections. Members of the public shall
7 have access to the records of inspections of public
8 buildings.
9 (b) Abatement plan.--Where asbestos exists in a facility,
10 the public employer shall file an asbestos abatement plan with
11 the department within 30 months of the effective date of this
12 act. This plan shall conform to the practices recommended by the
13 Environmental Protection Agency for abatement of asbestos. This
14 claim shall detail the relevant aspects of abatement, including
15 the message of abatement, the time frame of abatement and the
16 identity and qualifications of professional asbestos abatement
17 personnel involved in the abatement. The abatement plan shall be
18 subject to the approval of the committees at the affected
19 locations. Nothing in this subsection mandates the department to
20 require the removal of asbestos in workplaces where asbestos
21 exists.
22 Section 313. Public Employee Occupational Safety and Health
23 Review Board.
24 (a) Creation.--There is hereby created an administrative
25 board within the department, to be known as the Public Employee
26 Occupational Safety and Health Review Board. The board shall
27 consist of five members appointed by the Governor from among
28 persons who, by reason of training, education or experience, are
29 qualified to carry out the functions of the board under this
30 section. Two of the members must be sensitive to the interests
19890S1246B1542 - 32 -
1 of public employees and shall be appointed by the Governor from
2 among ten candidates submitted by the President of the
3 Pennsylvania AFL-CIO. Two of the members must be sensitive to
4 the interests of public employers and shall be appointed from a
5 list of ten candidates submitted by the Pennsylvania Local
6 Government Conference. The Governor shall designate one of the
7 members to serve as chairman of the board.
8 (b) Terms.--The initial chairman, appointed by the Governor,
9 shall serve a term of five years. Thereafter, a chairman shall
10 be elected by the members for a term of four years. Two of the
11 initial appointees shall serve terms of two years, one of the
12 initial appointees shall serve a term of three years, and one of
13 the initial appointees shall serve a term of four years.
14 Appointments after initial appointments shall be for terms of
15 four years.
16 (c) Meetings.--The board shall hold monthly meetings and
17 additional meetings as it deems necessary. A majority of the
18 board shall constitute a quorum for the transaction of business.
19 Special meetings of the board shall be called upon reasonable
20 notice by the chairman or by any two members of the board.
21 (d) Hearings and regulations.--The board shall hear and rule
22 on appeals from citations, notifications and penalties issued
23 under this act. Hearings and appeals from decisions of the board
24 shall be as provided in 2 Pa.C.S. (relating to administrative
25 law and procedure).
26 (e) Staff.--The board may employ a secretary, administrative
27 law judges and other employees as necessary.
28 (f) Compensation.--
29 (1) The chairman and members of the board shall be paid
30 a salary to be established by the Executive Board.
19890S1246B1542 - 33 -
1 (2) Except as set forth in paragraph (1), the salaries,
2 compensation or wages of employees of the board shall be
3 determined by the board.
4 (g) Expenses.--The members or employees of the board shall
5 be reimbursed for necessary expenses incurred in the performance
6 of their duties.
7 (h) Hearings.--
8 (1) Hearings authorized by this section shall be
9 conducted by an administrative law judge appointed by the
10 board to serve in its place. The administrative law judge may
11 be a full-time employee, may serve by contract or may be paid
12 on a per diem basis, at the discretion of the board.
13 (2) An administrative law judge appointed by the board
14 shall hear and make a determination upon proceedings
15 instituted before the board and upon motions in connection
16 with a proceeding assigned to the administrative law judge by
17 the chairman of the board and shall make a report of a
18 determination, which constitutes the administrative law
19 judge's final disposition of the proceedings. The report of
20 the administrative law judge shall become the final order of
21 the board within 30 days after the report is issued unless,
22 within that period, a board member has directed that the
23 report shall be reviewed by the board.
24 (3) In the conduct of hearings, the board or
25 administrative law judge may subpoena and examine witnesses,
26 require the production of evidence, administer oaths and take
27 testimony and depositions.
28 (4) After hearing an appeal, the board may sustain,
29 modify or dismiss a citation or penalty.
30 (5) The rules or procedures prescribed by the board
19890S1246B1542 - 34 -
1 shall provide affected employees or representatives of
2 affected employees an opportunity to participate as parties
3 to hearings under this subsection.
4 Section 314. Variances.
5 (a) Application.--A public employer may apply to the
6 department for a temporary order granting an exception from a
7 standard promulgated under this act. The temporary order may be
8 granted only if the employer files an application which meets
9 the requirements of this section and establishes that the public
10 employer:
11 (1) Is unable to comply with a standard by its effective
12 date because of the unavailability of professional or
13 technical personnel or of materials and equipment needed to
14 come into compliance with the standard or because necessary
15 construction or alteration of facilities cannot be completed
16 by the effective date.
17 (2) Is taking all available steps to safeguard employees
18 against the hazards covered by the standard.
19 (3) Has an effective program for coming into compliance
20 with the standard as quickly as possible.
21 (b) Temporary orders.--A temporary order issued under this
22 section shall prescribe the practices, means, methods,
23 operations and processes which the employer must adopt and use
24 while the order is in effect and state in detail compliance
25 requirements. The temporary order may be granted only after
26 notice to employees, employee representatives and the committee,
27 and after an opportunity for a hearing. The department may,
28 however, issue one interim order, to be effective until a
29 decision is made on the basis of the hearing. A temporary order
30 shall be in effect for as long as the period needed by the
19890S1246B1542 - 35 -
1 employer to achieve compliance with the standard, or for one
2 year, whichever is shorter. An order may be renewed, not more
3 than twice, if the requirements of this section are met and if
4 an application for renewal is filed at least 90 days prior to
5 the expiration date of the order. An interim renewal of an order
6 shall remain in effect no longer than 180 days.
7 (c) Contents of application for temporary order.--An
8 application for a temporary order shall contain all of the
9 following:
10 (1) A specification of the standard, or portion thereof,
11 from which the employer or owner seeks a variance.
12 (2) A representation by the employer, supported by
13 representations from qualified persons who have firsthand
14 knowledge of the facts represented, that the employer is
15 unable to comply with the standard, or portion thereof, and a
16 detailed statement of the reasons therefor.
17 (3) A statement of the steps the employer has taken and
18 will take, with dates specified, to protect employees against
19 the hazard covered by the standard.
20 (4) A statement of when the employer expects to be able
21 to comply with the standard and what steps the employer has
22 taken and will take, with dates specified, to come into
23 compliance with the standard.
24 (5) A certification that the employer has informed his
25 employees of the application:
26 (i) by giving a copy of the application to their
27 authorized representative and to the committee;
28 (ii) by posting a statement giving a summary of the
29 application and specifying where a copy may be examined
30 at the place or places where notices to employees are
19890S1246B1542 - 36 -
1 normally posted; and
2 (iii) by other appropriate names.
3 A description of how employees have been informed shall be
4 contained in the certification. The information to employees
5 shall also inform them of their right to petition the board
6 for a hearing.
7 (d) Variance rule.--Affected public employees shall be given
8 notice of each application for a variance and an opportunity to
9 participate in a hearing. The department shall issue an order if
10 it determines, on the record, after opportunity for an
11 inspection, where appropriate, and a hearing, that the proponent
12 of the variance has demonstrated by a preponderance of the
13 evidence that the conditions, practices, means, methods,
14 operations or processes used or proposed to be used by an
15 employer will provide employment and workplaces which are as
16 safe and healthful as those which would prevail if he complied
17 with the standard. The order shall prescribe the conditions the
18 employer must maintain and the practices, means, methods,
19 operations and processes which he must adopt and utilize to the
20 extent they differ from the standard in question. At any time
21 after six months from its issuance and in the manner prescribed
22 for its issuance under this section, an order may be modified or
23 revoked upon application by an employer, any employee or
24 employee representative, or by the board on its own motion.
25 (e) Limitation of action.--A person who may be adversely
26 affected by an order issued under this act may challenge the
27 validity or applicability of the order within 120 days from the
28 date of issuance, as provided in section 310.
29 CHAPTER 5
30 ENFORCEMENT
19890S1246B1542 - 37 -
1 Section 501. Enforcement orders.
2 If a work environment inspector determines that an employer
3 has violated this act, or a health or safety standard or
4 regulation promulgated under this act, the department shall,
5 within seven days, issue to the employer a citation, which shall
6 describe particularly the nature of the violation, including a
7 reference to the provision of this act or the standard,
8 regulation or order alleged to have been violated, and any
9 corrective action required. The department shall fix a
10 reasonable time for compliance, not to exceed 72 hours, unless
11 the employer can demonstrate to the board that the violation
12 cannot be remedied within that time.
13 Section 502. Imminent danger.
14 If a work environment inspector concludes that an activity
15 being carried on or scheduled to commence involves or will
16 involve a risk of serious personal injury or harm and that the
17 risk of such injury or harm is imminent, the inspector shall
18 require that the work cease. The inspector may stop work-related
19 and nonwork-related activities in the vicinity of the imminent
20 danger if such action is needed to protect the health and safety
21 of other persons. If, upon inspection, the work environment
22 inspector finds an imminent danger to exist, the inspector shall
23 order the immediate abatement of the dangerous situation. Before
24 the employer may recommence the activity, the inspector must
25 certify that the employer has come into compliance with this
26 act.
27 Section 503. Citations.
28 (a) Posting of citation.--Whenever the department issues a
29 citation to an employer, the employer shall post the citation or
30 a copy of the citation in a conspicuous place, at or near each
19890S1246B1542 - 38 -
1 place of violation cited in the citation, where it is clearly
2 visible to the affected employees. The department shall furnish
3 copies of such citation to employee representatives and to the
4 committee.
5 (b) Notice of citation.--If, after inspection or
6 investigation, the department issues a citation, it shall,
7 within a reasonable time after the termination of the inspection
8 or investigation, notify the employer by certified mail of the
9 penalty, if any, proposed to be assessed under section 509.
10 Notification shall inform the employer that it has 15 working
11 days from the receipt of notice within which to notify the
12 department that it wishes to contest the citation or proposed
13 assessment of penalty. If the employer fails to notify the
14 department within 15 days and if no notice is filed by an
15 employee or representative of employees under subsection (a)
16 within 15 days, the citation and assessment, as proposed, shall
17 be deemed a final order of the board and not subject to review
18 by a court or agency.
19 Section 504. Notice of penalty.
20 If the department has reason to believe that an employer has
21 failed to correct the violation for which a citation has been
22 issued within the period permitted for correction, it shall
23 notify the employer by certified mail of the failure and of the
24 penalty proposed to be assessed under section 509 because of
25 such failure. In the case of a review proceeding initiated by
26 the employer under this chapter in good faith and not solely for
27 delay or the avoidance of penalties, the period permitted for
28 correction of the violation shall not begin to run until the
29 entry of a final order by the board. Notification by the
30 department shall inform the employer that it has 15 working days
19890S1246B1542 - 39 -
1 from receipt of notice within which to notify the department
2 that it wishes to contest the notification or the proposed
3 assessment of the penalty. If, within 15 days from receipt of
4 notification under this section, the employer fails to notify
5 the department that it intends to contest the notification or
6 proposed assessment of penalty, the notification and assessment
7 as proposed shall be deemed a final order of the board and not
8 subject to review by court or agency.
9 Section 505. Proceedings by department.
10 If the time for compliance with an order or citation of the
11 board has elapsed and the employer has not complied with the
12 order or citation, the department shall commence a proceeding in
13 Commonwealth Court to enforce the order and shall levy
14 additional fines and penalties under section 509.
15 Section 506. Injunctive relief.
16 Commonwealth Court may, upon petition of the department or
17 any affected party, restrain any conditions or practices in any
18 place of public employment which could be expected to cause
19 death or physical harm. An order issued under this section may
20 require such steps to be taken as may be necessary to avoid,
21 correct or remove an imminent danger and to prohibit the
22 employment or presence of an individual in locations or under
23 conditions where an imminent danger exists, except individuals
24 whose presence is necessary to avoid, correct or remove the
25 imminent danger or to maintain the capacity of a continuous
26 process operation to resume normal operations without a complete
27 cessation of operations, or, where a cessation of operations is
28 necessary, to permit it to be accomplished in a safe and orderly
29 manner.
30 Section 507. Failure of secretary to act.
19890S1246B1542 - 40 -
1 Whenever the department fails to seek relief under this
2 chapter within five days of being notified of such condition,
3 any employee who may be injured by reason of the failure, or the
4 authorized employee representative of such employee or the
5 committee, may seek injunctive relief, as provided in this
6 section, or any other appropriate remedies. In the event that
7 such an action is successful, the employer shall pay the costs
8 and legal fees of the petitioning parties.
9 Section 508. Follow-up inspection.
10 If, at the time of or after inspection or investigation, the
11 department issues a citation for a violation, the department
12 shall conduct a reinspection at the end of the period fixed for
13 abatement of the violation. A public employer shall not be given
14 advance warning of a reinspection by the department.
15 Section 509. Penalties.
16 (a) Civil penalties.--The department may assess the
17 penalties set forth in this subsection, giving due consideration
18 to the appropriateness of the penalty with respect to the size
19 of the employer being charged, the gravity of the violation, the
20 good faith of the employer and the history of previous
21 violations. Penalties collected shall be deposited in a fund
22 maintained, administered and distributed by the board for
23 programs approved under this act. Penalties are as follows:
24 (1) Except as provided in paragraphs (3) and (4), an
25 employer who has received a citation for a violation of
26 section 302 or of a standard, rule, regulation or order
27 promulgated or issued under this act may be assessed a civil
28 penalty of not more than $1,000 for each violation.
29 (2) In addition to the penalties provided in paragraphs
30 (3) and (4):
19890S1246B1542 - 41 -
1 (i) An employer who willfully or repeatedly violates
2 section 302 or a standard, rule, regulation or order
3 promulgated or issued under this act may be assessed a
4 civil penalty of not more than $10,000 for each
5 violation.
6 (ii) An employer who fails to correct a violation
7 for which a citation has been issued within the period
8 permitted for its correction may be assessed a civil
9 penalty of not more than $1,000 for each day during which
10 the violation continues.
11 (3) An employer who has received a citation for a
12 serious violation of section 302 of a standard, rule,
13 regulation or order promulgated or issued under this act
14 shall be assessed a civil penalty of not more than $1,000 for
15 each violation. For purposes of this paragraph, a serious
16 violation shall be deemed to exist in a workplace if there is
17 a substantial probability that death or serious physical harm
18 could result from a condition which exists, or from one or
19 more practices, means, methods, operations or processes which
20 have been adopted or are in use in the workplace, unless the
21 employer did not and could not, with the exercise of
22 reasonable diligence, know of the presence of the violation.
23 (4) An employer who violates posting requirements
24 prescribed or established under this act shall be assessed a
25 civil penalty of not more than $1,000 for each violation.
26 (b) Criminal penalties.--Criminal penalties are as follows:
27 (1) If an employer intentionally violates this act or a
28 standard, rule, regulation or order promulgated or issued
29 under this act and if the violation causes the death of an
30 employee, the employer commits a misdemeanor of the third
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1 degree and shall:
2 (i) Upon conviction for the first offense, be
3 sentenced to pay a fine of not more than $10,000 or to
4 imprisonment for not more than six months, or both.
5 (ii) Upon conviction for a subsequent offense, be
6 sentenced to pay a fine of not more than $20,000 or to
7 imprisonment for not more than one year, or both.
8 (2) A person who, without authority from the executive
9 director or a designee, gives advance notice of an inspection
10 to be conducted under this act commits a misdemeanor of the
11 third degree and shall, upon conviction, be sentenced to pay
12 a fine of $1,000 or to imprisonment for not more than six
13 months, or both.
14 (3) A person who knowingly makes a false statement,
15 representation or certification in an application, record,
16 report, plan or other document filed or required to be
17 maintained under this act commits a misdemeanor of the third
18 degree and shall, upon conviction, be sentenced to pay a fine
19 of $10,000 or to imprisonment for not more than six months,
20 or both.
21 Section 510. Civil actions.
22 (a) Standing.--A person may bring a civil action on the
23 person's own behalf against an employer for a violation of this
24 act or of a rule or regulation promulgated under this act or
25 against the board for failure to enforce this act or a rule or
26 regulation promulgated under this act.
27 (b) Costs and fees.--A court of competent jurisdiction may
28 award, whenever it seems appropriate, costs of litigation,
29 including reasonable attorney and expert witness fees.
30 (c) Waiver of sovereign immunity.--The right to sue as
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1 embodied in the various sections of this act constitutes an
2 express waiver of sovereign immunity for the purpose of 1
3 Pa.C.S. § 2310 (relating to sovereign immunity reaffirmed;
4 specific waiver).
5 CHAPTER 11
6 MISCELLANEOUS PROVISIONS
7 Section 1101. Appropriation.
8 The sum of $3,000,000, or as much thereof as may be
9 necessary, is hereby appropriated to the Department of Labor and
10 Industry for the fiscal year July 1, 1989, to June 30, 1990, to
11 carry out this act.
12 Section 1102. Severability.
13 The provisions of this act are severable. If any provision of
14 this act or its application to any person or circumstance is
15 held invalid, the invalidity shall not affect other provisions
16 or applications of this act which can be given effect without
17 the invalid provision or application.
18 Section 1103. Repeals.
19 All acts and parts of acts are repealed insofar as they are
20 inconsistent with this act.
21 Section 1104. Effective date.
22 This act shall take effect in 60 days.
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