Senate Bill No. 301
(By Senators Grubb and Jackson)
__________
[Introduced February 2, 1996; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
__________
A BILL to amend and reenact sections two, three, seven, eight,
nine, ten, eleven, thirteen, fourteen, fifteen and nineteen,
article three-a, chapter twenty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to the West Virginia occupational safety and
health act; coverage; liability; funding; and technical
corrections.
Be it enacted by the Legislature of West Virginia:
That sections two, three, seven, eight, nine, ten, eleven,
thirteen, fourteen, fifteen and nineteen, article three-a,
chapter twenty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted,
all to read as follows:
ARTICLE 3A. OCCUPATIONAL SAFETY AND HEALTH ACT.
§21
-3A-2. Definitions.
As used in this chapter, unless the context clearly
indicates otherwise:
(a) "Commission" means the occupational safety and health
review commission established under this article;
(b) "Commissioner" means the labor commissioner or his
designated agent;
(c) "Employee" means any public employee of the state, or
any state agency person employed by an employer;
(d) "Employer" means public employer and shall include
includes the state or any department, division, bureau, board,
council, agency or authority of the state, but shall not include
the department of corrections, the department of health and the
Legislature and all of its political subdivisions;
(e) "Occupational safety and health standard" means a
standard for health or safety which requires the adoption or use
of one or more practices, means, methods, operations or processes
reasonably necessary or appropriate to provide safe and healthful
employment in places of employment;
(f) "Person" means one or more individuals; and
(g) "Workplace" means a place where public employees are
assigned to work but shall not include any place where public
employees are assigned to work that is inspected and regulated in accordance with federal occupational safety and health standards
or mine safety and health administration standards. or
facilities under the authority of the department of corrections,
the department of health, or the Legislature
§21-3A-3. Section of occupational safety and health;
coordination of activities with workers' compensation
commissioner.
(a) There is hereby created in the labor department division
a division section of occupational safety and health, comprised
of a subdivision subsection for safety, a subdivision subsection
for health and such other subdivisions subsections as the
commissioner considers necessary. This division section shall
administer all matters pertaining to occupational safety and
occupational health.
(b) The labor commissioner may require the assistance of
other state agencies and may enter into agreements with other
state agencies and political subdivisions of the state for the
administration of this chapter.
(c) The labor commissioner shall provide for coordination
between the division section of occupational safety and health
and the workers' compensation commissioner including, but not
limited to, the establishment of standardized procedures and
reportings.
§21-3A-7. Adoption of federal and state standards; variances.
(a) The commissioner, on or before the first day of July,
one thousand nine hundred eighty-seven, shall provide at the
minimum, for the adoption of all occupational safety and health
standards, and all subsequent amendments or changes there adopted
or recognized by the United States secretary of labor under the
authority of the Occupational Safety and Health Act of 1970,
which are in effect on the effective date of this section. Where
no federal standards are applicable, or where standards more
stringent than the federal standards are deemed advisable, the
commissioner shall provide for the development of such state
standards as will comport with the purposes of this act.
Standards shall be adopted through state administrative
procedures.
(b) In the event of emergency or unusual situations, the
commissioner shall provide for an emergency temporary standard to
take effect immediately if he determines:
(1) Employees are exposed to grave danger from exposure to
substances or agents determined to be toxic or physically harmful
or from new hazards; and
(2) The emergency standard is necessary to protect employees
from such danger.
The emergency standard may be in effect not longer than one hundred eighty days or, if renewed in compliance with the laws of
this state governing the adoption or extension of rules, not
longer than sixty additional days. On or before the expiration
date of the emergency standard or renewal thereof, the
commissioner shall develop a permanent standard to replace the
emergency standard.
(c) Any standard promulgated shall prescribe the use of
labels or other appropriate forms of warning necessary to ensure
that employees are apprised of all hazards to which they are
exposed, relevant symptoms and appropriate emergency treatment
and, where appropriate, proper conditions and precautions of safe
use or exposure. The standard shall also prescribe suitable
protective equipment and control procedures for use in connection
with such hazards and shall provide for measuring employee
exposure in the manner necessary for the protection of employees.
In addition, where appropriate, the standard shall prescribe the
type and frequency of medical examinations or other tests which
shall be made available to employees exposed to such hazards in
order to determine any adverse effect from that exposure.
(d) Any employer may apply to the commissioner for a
temporary order granting a variance from a standard, or any
provision thereof, promulgated under this section. A temporary
order shall be granted if the employer files an application which meets the requirements of subsection (e) of this section and
establishes that:
(1) He The employer is unable to comply with a standard by
its effective date because of unavailability of professional or
technical personnel or of materials and equipment needed to come
into compliance with the standard or because necessary
construction or alteration of facilities cannot be completed by
the effective date;
(2) He The employer is taking all available steps to
safeguard employees against the hazards covered by the standard;
and
(3) He The employer has an effective program for coming into
compliance with the standard as quickly as practicable.
Any temporary order issued under this subsection shall
prescribe the practices, means, methods, operations and processes
which the employer must adopt and use while the order is in
effect and state in detail his program for coming into compliance
with the standard. A temporary order may be granted only after
notice by the commissioner to employees and an opportunity for a
hearing before the commissioner: Provided, That the commissioner
may issue one interim order to be effective until a decision is
made on the basis of the hearing. No temporary order may be in
effect for longer than the period needed by the employer to achieve compliance with the standard or one year, whichever is
shorter: Provided, however, That an order may be renewed if the
requirements of this subsection are met and if an application for
renewal is filed at least ninety days prior to the expiration
date of the order. No interim renewal of an order may remain in
effect longer than one hundred eighty days.
(e) An application for a temporary variance order shall
contain:
(1) A specification of the standard or portion thereof from
which the employer seeks a variance;
(2) A representation by the employer, supported by
representations from qualified persons who have firsthand
knowledge of the facts represented, that he the employer is
unable to comply with the standard or portion thereof and a
detailed statement of the reasons therefor;
(3) A statement of the steps he the employer has taken and
will take, with specific dates, to protect employees against the
hazard covered by the standards;
(4) A statement of when he the employer expects to comply
with the standard and what steps he has have been taken and what
steps he will take be taken, with dates specified, to come into
compliance with the standard; and
(5) A certification that he the employer has informed his its employees of the application by giving a copy thereof to
their authorized representative, posting a statement giving a
summary of the application and specifying where a copy may be
examined at the place or places where notices to employees are
normally posted and by other appropriate means. A description of
how employees have been informed shall be contained in the
certification. The information to employees shall inform them of
their right to petition the commissioner for a hearing. The
commissioner is authorized to grant a variance from any standard
or portion thereof whenever he or she determines that a variance
is necessary to permit an employer to participate in an
experiment, approved by the commissioner, designed to demonstrate
or validate new and improved techniques to safeguard the health
or safety of workers.
(f) Any affected employer may apply to the commissioner for
an order granting a variance from a standard promulgated under
this section. Affected employees shall be given notice of each
such application and an opportunity to participate in a hearing
before the commissioner. The commissioner shall issue such order
if he or she determines on the record, after opportunity for an
inspection where appropriate and a hearing, that the proponent of
the variance has demonstrated by a preponderance of the evidence
that the conditions, practices, means, methods, operations or processes used or proposed to be used by an employer will provide
employment and places of employment which are as safe and
healthful as those which would prevail if he the employer
complied with the standard. The order issued shall prescribe the
conditions the employer must maintain and the practices, means,
methods, operations and processes which he the employer must
adopt and utilize to the extent they differ from the standard in
question. The order may be modified or revoked upon application
by an employer or employees, or by the commissioner on his own
motion, in the manner prescribed for its issuance under this
subsection at any time after six months from its issuance.
(g) Any employee who may be adversely affected by a standard
or variance or regulation issued under this section may challenge
the validity or applicability of a standard or variance or
regulation by bringing an action for a declaratory judgment.
(h) It is the expressed intent of the Legislature that an
unlimited number of variances may be granted, if the conditions
of this section are met.
§21-3A-8. Inspections and investigations; records.
(a) In order to carry out the purposes of this article, the
commissioner or his or her agent, upon presenting appropriate
credentials to the employer, is authorized:
(1) To enter without advance notice, except as provided in subsection (d) of section six, and at reasonable times may enter
any workplace or environment where work is performed by an
employee of an employer; and
(2) To inspect and investigate, during regular working hours
and at other reasonable times and within reasonable limits and in
a reasonable manner, any place of employment and all pertinent
conditions, structures, machines, apparatus, devices, equipment
and the materials therein, and to question privately any employer
or employee. No public employer may refuse to allow a
representative of the commissioner to inspect a place of
employment. If an employer attempts to prevent a representative
of the department division from conducting an inspection, the
commissioner may obtain an inspection warrant from the circuit
court of Kanawha County or the circuit court of the county
wherein the employer is located.
(b) In making his inspections and investigations under this
entire article the commissioner may require the attendance and
testimony of witnesses and the production of evidence under oath.
Witnesses shall be paid the same fees and mileage that are paid
witnesses in the courts of this state. In case of contumacy or
failure or refusal of any person to obey such an order, the
circuit court for the judicial circuit wherein the person
resides, is found or transacts business has jurisdiction to issue to the person an order requiring the person to appear, to produce
evidence if asked and, when so ordered, to give testimony
relating to the matter under investigation or in question. Any
failure to obey such order of the court may be punished by the
court as a contempt thereof.
(c) (1) Each employer shall make, keep, preserve and make
available to the commissioner and the United States secretary of
labor records regarding his its activities relating to this
entire article as the commissioner may prescribe by rule as
necessary or appropriate for the enforcement of this article or
for developing information regarding the causes and prevention of
occupational accidents and illnesses. In order to carry out the
provisions of this subdivision, these rules may include
provisions requiring employers to conduct periodic inspections.
The commissioner shall also issue rules requiring that employers,
through posting of notices or other appropriate means, keep their
employees informed of their protections and obligations under
this entire article, including the provisions of applicable
standards.
(2) The commissioner shall prescribe rules requiring
employers to maintain accurate records of and to make periodic
reports on work-related deaths, injuries and illnesses other than
minor injuries requiring only first-aid treatment and not involving medical treatment, loss of consciousness, restriction
of work or motion or transfer to another job.
(3) The commissioner shall issue rules requiring employers
to maintain accurate records of employee exposures to potentially
toxic materials or harmful physical agents which are required to
be monitored or measured under any occupational safety and health
standard adopted under this entire chapter. These regulations
shall provide employees or their representatives an opportunity
to observe the monitoring or measuring and to have access to the
records. The regulations shall also make appropriate provisions
for each employee or former employee to have such access to the
records as will indicate his or her own exposure to toxic
materials or harmful physical agents. Each employer shall
promptly notify any employee who has been or is being exposed to
toxic materials or harmful physical agents in concentrations or
at levels which exceed those prescribed by an applicable
occupational safety and health standard promulgated under section
six of this article and shall inform any employee who is being
thus exposed of the corrective action being taken.
(d) Any information obtained by the commissioner under this
entire article shall be obtained with a minimum burden upon
employers. Unnecessary duplication of efforts in obtaining
information shall be eliminated to the maximum extent feasible.
(e) Subject to rules issued by the commissioner, a
representative of the employer and a representative authorized by
the employees of the employer shall be given an opportunity to
accompany the commissioner or his or her authorized
representative during the physical inspection of any workplace
for the purpose of aiding the inspection. Where there is no
authorized employee representative, the commissioner or his or
her authorized representative shall consult with a reasonable
number of employees concerning matters of health and safety in
the workplace.
(f) (1) Any employee or representative of employees who
believes that there is a violation of an occupational safety or
health standard or that there is an imminent danger of physical
harm may request an inspection by giving notice to the
commissioner or his or her authorized representative of the
violation or danger. The notice shall be reduced to writing,
shall set forth with reasonable particularity the grounds for the
notice and shall be signed by the employees or their
representative. A copy of the notice shall be provided the
employer or his its agent no later than the time of the
inspection: Provided, That upon the request of the person giving
the notice, his the person's name and the names of individual
employees referred to therein shall not appear in the copy or on any record published, released or made available pursuant to
subsection (g) of this section. If, upon receipt of the
notification, the commissioner determines there are reasonable
grounds to believe that such violation or danger exists, he the
commissioner or his or her authorized representative shall make
an inspection in accordance with the provisions of this section
as soon as practicable to determine if the violation or danger
exists. The commissioner shall maintain records of the results
of any such investigation, which shall be made available to the
public upon request. The authority of the commissioner to
inspect any premises for purposes of investigating an alleged
violation of safety standards shall not be limited to the alleged
violation but shall extend to any other area of the premises in
which he or she has reason to believe that a violation of the
safety standards promulgated under this act exists. If the
commissioner determines there are no reasonable grounds to
believe that the violation or danger exists, he or she shall
notify the employer, employee or representative of employees in
writing of the determination. The notification does not preclude
future enforcement action if conditions change.
(2) Prior to or during any inspection of a workplace, any
employees or representative of employees employed in the
workplace may notify the commissioner, or any representative of the commissioner responsible for conducting the inspection, in
writing of any violation of this entire article which they have
reason to believe exists in the workplace. The commissioner
shall, by rule, establish procedures for review of any refusal by
a representative of the commissioner to issue a citation with
respect to any alleged violation, and shall furnish the employer
and the employees or representative of employees requesting the
review a written statement of the reasons for the commissioner's
final disposition of the case. The notification does not
preclude future enforcement action if conditions change.
(g) (1) The commissioner is authorized to compile, analyze
and publish in either summary or detail form all reports or
information obtained under this section.
(2) The commissioner shall prescribe such rules as he or she
considers necessary to carry out his or her responsibilities
under this article, including rules dealing with the inspection
of an employer's or owner's establishment.
§21-3A-9. Citation for violation.
(a) If, upon inspection or investigation, the commissioner
or his or her authorized representative believes that an employer
or employee has violated any safety and health standards or
variance or the commissioner finds a condition which poses a
recognized hazard likely to cause death or serious physical harm or illness, the commissioner shall, with reasonable promptness,
issue a citation to the employer or employee. Each citation
shall be in writing and shall describe with particularity the
nature of the violation, including a reference to the provision
of this article, or the standard, rule or order alleged to have
been violated. The citation shall fix a reasonable time for the
abatement of the violation.
(b) Each citation issued under this section or a copy or
copies thereof shall be prominently posted as prescribed in rules
issued by the commissioner at or near each place a violation
referred to in the citation occurred.
§21-3A-10. Occupational safety and health review commission.
(a) There is hereby created a West Virginia occupational
safety and health review commission within the labor department
division for administrative purposes only. The commission shall
consist of three members appointed by the governor, by and with
consent of the Senate, from among persons who, by reason of
training, education or experience, are qualified to carry out the
functions of the commission under this article. The governor
shall designate one of the members of the commission to serve as
chairman.
(b) Members of the review commission shall serve terms of
four years and until their successors are appointed.
(c) The review commission shall hold monthly meetings and
such additional meetings as necessary. A majority of the review
commission shall constitute a quorum for the transaction of
business. Special meetings of the review commission may be
called upon reasonable notice by the commissioner or by any two
members of the commission.
(d) The review commission shall hear and rule on appeals
from citations, variances and notifications issued under the
provisions of this article and shall adopt and promulgate rules
with respect to the procedural aspects of its hearings. The
rules shall provide affected employees and their representatives
an opportunity to participate as parties at hearings under this
section. Such employees shall be given time off by their
employers to participate in these hearings.
(e) The chairman of the commission and each of the other two
members shall be paid a per diem allowance for days in
performance of their duties at the rate of one hundred dollars
per diem, together with their expenses at a rate determined by
law.
(f) To conduct hearings, the review commission or chairman
may subpoena and examine witnesses, require the production of
evidence, administer oaths and take testimony and depositions.
(g) After hearing an appeal the review commission may sustain, modify or dismiss a citation.
§21-3A-11. Notice to employer of contest period; action by
commissioner; action by review commission.
(a) If, after inspection or investigation, the commissioner
issues a citation pursuant to section nine, he or she shall,
within a reasonable time after the termination of the inspection
or investigation, notify the employer or employee by certified
mail. The notification shall inform the employer or employee
that he or she has fifteen working days from the receipt of
notice within which to notify the commissioner that he or she
wishes to contest the citation or to seek a variance. If the
employer or employee fails to so notify the commissioner within
fifteen days, and if no notice is filed by any employee or
representative of employees pursuant to subsection (c) of this
section within fifteen days, the citation, as proposed, becomes
a final order and not subject to review by any court or agency.
(b) If the commissioner has reason to believe that an
employer or employee has failed to correct a violation for which
a citation has been issued within the period permitted for
correction, the commissioner shall notify the employer or
employee by certified mail or personal service of such failure
and the commissioner shall seek judicial enforcement of such
citation order: Provided, That in the case of a review proceeding initiated by the employer or employee under this
section in good faith and not solely for delay, the period
permitted for correction of the violation does not begin to run
until the entry of a final order by the review commission. The
notification by the commissioner shall inform the employer or
employee that he or she has fifteen working days from the receipt
of the notice within which to notify the commissioner that he
wishes to contest the notification. If, within fifteen days from
receipt of notification under this section, the employer or
employee fails to notify the commissioner that he or she intends
to contest the notification, the notification and assessment as
proposed become a final order of the commission and not subject
to review by any court or agency.
(c) If an employer or employee notifies the commissioner
within the fifteen day period provided for in subsection (b) of
this section that he or she wishes to contest the notification,
the commissioner shall immediately advise the commission of the
notification and the commission shall afford an opportunity for
a hearing. Upon a showing by an employer or employee of a good
faith effort to comply with the abatement requirements of a
citation and a showing that abatement has not been completed
because of factors beyond his or her reasonable control, the
commissioner, after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the
abatement requirements in the citation. The rules of procedure
prescribed by the commission shall provide affected employees or
representatives of affected employees an opportunity to
participate as parties to hearings under this subsection.
(d) If the employer or employee, at a hearing under
subsection (c) of this section, does not prove he made a good
faith effort to comply, the commission shall seek judicial
enforcement to compel compliance.
§21-3A-13. Discrimination against employee filing complaint.
(a) No employer may discharge or in any manner discriminate
against any employee because the employee has filed any
complaint, instituted or caused to be instituted or participated
in any proceedings under or related to this article, has
testified or is about to testify in any such proceedings or has
exercised on behalf of himself or herself or others any right
afforded by this article.
(b) Any employee who believes that he or she has been
discharged or otherwise discriminated against by any person in
violation of this section may, within thirty days after the
alleged violation occurs, file a complaint with the commissioner
alleging such discrimination. Upon receipt of the complaint the
commissioner shall cause an investigation to be made. If after such investigation the commissioner determines that the
provisions of this section have been violated, he or she shall
bring an action in the circuit court of Kanawha County against
the employer. In any such action, the court has jurisdiction,
for cause shown, to restrain violations of subsection (a) of this
section and to order all appropriate relief including rehiring or
reinstatement of the employee to his or her former position with
back pay plus interest at the statutory rate in this state.
§21-3A-14. Enjoining of conditions or practices at places of
employment; mandamus against commissioner for failure to
act.
(a) The circuit court of Kanawha County or the circuit court
in the county wherein the workplace is located has jurisdiction,
upon petition by the commissioner, to restrain or enjoin any
conditions or practices in any workplace which are such that a
danger exists which could reasonably be expected to cause death
or serious physical harm immediately or before the imminence of
the danger can be eliminated through the enforcement procedures
otherwise provided by this article. Any order issued under this
section may require such steps to be taken as are necessary to
avoid, correct or remove the imminent danger and prohibit the
employment or presence of any individual in locations or under
conditions where the imminent danger exists, except the presence of those individuals whose presence is necessary to avoid,
correct or remove such imminent danger, or to maintain the
capacity of a continuous process operation, or to resume normal
operations without a complete cessation of operations or, where
a cessation of operation is necessary, to permit such to be
accomplished in a safe and orderly manner. No temporary
restraining order issued without notice may be effective for more
than five days.
(b) Whenever and as soon as an inspector concludes that
conditions or practices described in subsection (a) of this
section exist in any place of employment, he or she shall inform
the affected employees and employer of the danger and shall
further inform those persons that he or she is recommending to
the commissioner that relief be sought. If the commissioner
fails to seek relief under this section within forty-eight hours
of being notified of such conditions, any employee who may have
been injured by reason of such failure danger or the authorized
representative of such employee may seek injunctive relief as the
employer in the same manner as provided in subsection (a).
Nothing in this section is to be construed as providing a cause
of action for personal injury or indemnification of the same
against the division of labor, its commissioner or his or her
authorized representatives for the failure or mobility to have sought relief under this section.
§21-3A-15. Research and demonstration projects.
The commissioner shall conduct research and undertake
demonstration projects relating to occupational safety and health
issues and problems, either within the labor department division
or by grants or contracts. The commissioner may prescribe rules
requiring employers to measure, record and make reports on
exposure of employees to toxic substances which he or she
believes may endanger the health or safety of employees. The
commissioner shall cooperate with the director of the national
institute for occupational safety and health of the department of
health and human services of the United States in establishing
programs of medical examinations and tests necessary to determine
the incidence of occupational illness and employee susceptibility
to such illnesses. Such programs, upon the request of the
employer, may be paid for by the commissioner, together with such
other assistance as may be required. Information obtained under
this section shall be made public without revealing the names of
individual workers covered by physical examination or special
studies and shall be made available to employers, employees and
their authorized representatives.
§21-3A-19. Occupational safety and health fund.
The governing body of any county or municipality or any department, division, bureau, board, council, agency or authority
of any county or municipality or of any school district or
special purposes district created pursuant to law may, by
ordinance, resolution or other procedure, explicitly elect that
some or all of its workplaces or employees shall be covered by
the provisions of this article. The commissioner shall issue
rules and regulations and prescribe forms and procedures
regarding such optional coverage. The commissioner may issue
rules and regulations providing for variances from the procedural
and substantive requirements of this article in the case of the
optional coverage described herein.
For the operation of the division and enforcement of this
article, there is hereby created a special revenue account to be
known as the occupational safety and health fund. This fund
shall consist of appropriations made by the Legislature and funds
transferred in accordance with the provisions of this section.
Funds received for occupational safety and health services
rendered to other agencies, bureaus, departments, divisions and
units of state government and such local government units as are
covered by the provisions of this article. The commissioner is
authorized to and shall establish the fee by rule no later than
the thirtieth day of June, one thousand nine hundred ninety-six,
to be charged for occupational safety and health services rendered, not to exceed one dollar fifty cents per employee per
month. Each agency, department, bureau, division or unit of
state government or local government served by the division under
the provisions of this article are hereby authorized and directed
to transmit to the division for deposit in the special fund the
charges as established by the commissioner. These fees are to be
paid by the employer and not by its employees. Disbursements
from the fund shall be made under the direct supervision of the
commissioner. The commissioner shall maintain accurate records
reflecting the cost and expenditures of administering the
provisions of this article.
NOTE: The purpose of this bill is to extend coverage of the
occupational safety and health act to all classes of public
employees and to establish a fee system and special revenue
account to render the enforcement of the act self-supporting.
The bill also contains minor "clean-up" amendments that reflect
changes arising from recent state government reorganization and
principles of gender neutrality in the act's language.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.