H. B. 2371
(By Delegate Paxton)
[Introduced January 12, 2011; referred to the
Committee on Energy, Industry and Labor, Economic Development and Small Business then the Judiciary.]
A BILL to repeal §21-3A-10, §21-3A-11, §21-3A-12, §21-3A-18 and §21-3A-19 of the Code of West Virginia, 1931 as amended; to amend and reenact §5B-1-2 of said code; and to amend and reenact §21-3A-2, §21-3A-5, §21-3A-6, §21-3A-7 and §21-3A-8 of said code, all relating to the West Virginia Occupational Safety and Health Act; repealing the West Virginia OSHA Commission; transferring the rule-making authority and duties of the commission to the Commissioner of Labor; adding definitions; clarifying employer and employee duties; requiring the promulgation of legislative rules by date certain; requiring education programs; authorizing emergency rules by date certain; requiring reporting; adopting federal standards by a date certain; authorizing inspections; requiring inspection reports; specifying penalty for noncompliance; and providing appeals.
Be it enacted by the Legislature of West Virginia:
That §21-3A-10, §21-3A-11, §21-3A-12, §21-3A-18 and §21-3A-19 of the Code of West Virginia, 1931 as amended, be repealed; that §5B-1-2 of said code be amended and reenacted; that §21-3A-2, §21-3A-5, §21-3A-6, §21-3A-7 and §21-3A-8 of said code be amended and reenacted, all to read as follows:
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 1. DEPARTMENT OF COMMERCE.
§5B-1-2. Agencies, boards, commissions, divisions and offices comprising the Department of Commerce.
The Department of Commerce consists of the following agencies,
boards, commissions, divisions and offices, including all of the
allied, advisory, affiliated or related entities, which are
incorporated in and administered as part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter twenty-one of this code, which includes
(A) Occupational Safety and Health Review Commission provided in article three-a, chapter twenty-one of this code; and
(B) the Board of Manufactured Housing Construction and Safety provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in article one, chapter twenty-two-a of this code. The following boards are transferred to the Office of Miners' Health, Safety and Training for purposes of administrative support and liaison with the Office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety and Technical Review Committee provided in article six, chapter twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine, chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the Division of Tourism and the Tourism Commission, provided in article two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter nineteen of this code;
(6) Geological and Economic Survey provided in article two, chapter twenty-nine of this code;
(7) Workforce West Virginia provided in chapter twenty-one-a of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Service;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis; and
(8) Division of Energy provided in article one, chapter five-h of this code.
CHAPTER 21. LABOR.
ARTICLE 3A. OCCUPATIONAL SAFETY AND HEALTH ACT.
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) (a) "Commissioner" means the Labor Commissioner or his a designated agent;
(c) (b) "Employee" means any public employee of the state, or any state agency;
(d) (c) “Employer" means public employer and shall include includes the state or any department, division, bureau, board, council, agency or authority of the state, including county and municipal offices, but shall does not include the Department of Corrections the department of health and the Legislature;
(e) (d) "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) (e) "Person" means one or more individuals;
(f) “Potential hazard” means:
(1) A hazard reasonably anticipated or known to be associated with a working condition, a work related product or byproduct;
(2) Any emergency or unusual situation a reasonable person would avoid if made aware of, regardless if it is mechanical, industrial, chemical, water based or airborne;
(h) (g) “Temporary variance” means a written authorization by the commissioner to grant an exemption from a recognized occupational health and safety standard established pursuant to this article and applicable federal law. A temporary variance may not be issued in excess of seven working days: Provided, That a variance may not be issued where an employer or employee has a duty to correct a violation of this article: Provided, however, That a variance may not be issued that endangers an employee or the general public; and
(i) (h) "Workplace" means a place where public employees are assigned to work but shall does 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 Division of Corrections, the Department of Health and Human Resources or the Legislature.
§21-3A-5. Duties of employer and employee.
(a) Each employer shall furnish to each of his employees employment and employee a place of employment which are is free from recognized hazards causing or likely to cause death or serious physical harm or serious illness to his employees any employee of the employer or the general public.
(b) Each employer shall, upon the written request of any employee, furnish the employee with a written statement listing the substances which the employee uses or with which the employee comes into contact, which substances have been identified as toxic and hazardous by occupational safety and health standards, under Title 29 CFR 1910.1000 "Air Contaminant Code of Federal Regulations" through 1910.1046, or listed in the most recent National Institute for Occupational Safety and Health Registry of the Toxic Effects of Chemical Substances (RTECS).
(c) Each employer shall comply with occupational safety and health standards promulgated under this article.
(d) Each employer shall submit, on or before June 1, 2011, an employee training and education plan to the commissioner for approval to reduce and eliminate the inherent risk of all applicable job titles or classifications for each employee of the employer. Each employer plan shall identify the known risks and the appropriate training for each job title or classification necessary to comply with the intent of this article.
(e) Each employer shall provide each employee with access to reasonable use of the employers office equipment, computers, copiers and communication equipment and each employee shall have use of the office equipment to prepare or copy any report, investigation or inspection provided in this article.
(d) (f) Each employee shall comply with occupational safety and health standards and all regulations and orders issued pursuant to this article which are applicable to his or her actions and conduct.
(g) Each employee shall report any potential hazard in writing to the employer as soon as the reporting is practical: Provided, That where a potential hazard, emergency or unusual situation can be reasonably considered life threatening, reporting may be conducted telephonically, electronically, or in person. Where an employee reports a potential hazard other than in writing the employee shall have seven work days to submit a written statement reporting the incident to the employer.
(h) Each employee shall report any failure to comply with this article, or any on going violation of this article, to the commissioner. An employee, who in good faith dutifully reports a violation or suspected violation of this article to the commissioner, is immune from any civil liability.
(i) Each employee shall and any employer may report any potential hazard to the commissioner regardless of whether it is life threatening or not.
(j) An employer may not retaliate against an employee who reports in good faith a potential hazard, an emergency or unusual situation or a violation of this article. An employer who violates this section is guilty of insubordination and may be disciplined up to and including termination.
In the rules adopted under the authority of this article, the commissioner shall:
(a) On or before June 30, 2011, the commissioner shall propose legislative rules pursuant to article three, chapter twenty-nine-a of this code to:
(a) (1) Provide for the preparation, adoption, amendment or repeal of rules necessary to effectuate the health and safety purposes of this article;
(b) (2) Provide or specify the form and content of the employer educational programs to be provided by or submitted to the commissioner for approval, in a manner determined by the commissioner. Educational programs shall be detailed and task specific to encourage employers and employees in their efforts to reduce the number of safety and health hazards and to stimulate employers and employees to institute new programs, and to perfect existing programs to provide for safe and healthful working conditions: Provided, That if an employer does not submit an educational program plan by December 31, 2011, the commissioner shall determine an appropriate plan to be implemented by the employer by July 1, 2012;
(c) (3) Provide standard procedures for appropriate reporting procedures by employers with respect to information relating to conditions of employment which will assist in achieving the objectives of this article;
(d) (4) Provide for the frequency, method and manner of making inspections of workplaces without advance notice: Provided, That in the event of an emergency or unusual situation, the commissioner may not be required to give advance notice;
(e) (5) Provide for the publication and dissemination to employers, employees and labor organizations and the posting, where appropriate, by employers of informational, educational or training materials calculated to aid and assist in achieving the objectives of this article; and
(f) (6) Provide for the establishment of new programs, and the perfection and expansion of existing programs for occupational safety and health education for employers and employees and institute methods and procedures to establish a program for voluntary compliance by employers and employees with the requirements of this article and all applicable safety and health standards and regulations rules promulgated pursuant to the authority of this article.
(7) Provide the minimum standards for employer education and training programs, adequate to protect the health, safety and welfare of each employee of the employer.
(8) Establish criteria for each employer to adopt education and training programs that allow employee participation in the development of the educational training programs specific to the employee job description and classification title.
(9) Provide for 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.
(10) Provide standards for 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.
(11) Provide guidelines for 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.
(12) Establish a complaint process to allow an employee to report potential hazards, emergency or unusual situations and violations of this article. The complaint process shall include:
(A) The form in which a request can be made for inspections and investigations;
(B) Required notice of inspections and investigations, to allow participation by the employee or party of complainants, employee representatives and the employer;
(C) Required reporting of any findings of the investigation including any recommendations, to provide a copy of all reports to the employee or party of complainants, employee representatives and the employer; and
(D) An appeal process for any party adversely impacted by an inspection, investigation or finding by the commissioner or lack thereof.
(13) Provide a process for an employer to request a variance or temporary order from compliance with any rule or standard pursuant to this article. A request for variance or temporary order shall be in writing and shall specify the reasons for the request. A copy of the request for a variance or temporary order shall be provided to each employee of the employer requesting the variance or temporary order. The commissioner shall allow each employee not less than twenty work days to comment on the request before consideration of the request.
(14) Provide the manner in which reports shall be developed, the schedule for the production of inspection and investigation reports and provide that the reports shall be made available to the public, the employers, employees and any employee representatives: Provided, That the name or names of the person or group of people who file a complaint, request for inspection or investigation pursuant to this article shall be redacted from all public records.
(16) Provide an appeals process for an employer or employee who may be adversely impacted by any action taken pursuant to this article: Provided, That the commissioner shall also provide an appeals process as a remedy for the inaction of any employer, employee or the commissioner.
(b) The commissioner may promulgate rules pursuant to this article as emergency rules: Provided, That any rule promulgated as an emergency rule shall be submitted for approval by the Legislature no later than December 31, 2011.
§21-3A-7. Adoption of federal and state standards; variances emergency situation reports; and appeals.
(a) The commissioner, on or before July 1, 1987 2011, shall provide at the minimum, for the adoption of all occupational safety and health standards, amendments or changes 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 that comport with the purposes of this act. Standards applicable to the implementation and enforcement of this article shall be adopted through state administrative procedures pursuant to article three, chapter twenty-nine-a of this code.
(b) (1) In the event of If there are emergency or unusual situations, the commissioner shall provide for an emergency temporary standard to take effect immediately if he determines: inspection by appropriate staff, emergency response personnel or other persons designated by the commissioner who are qualified to identify potential hazards, emergency situations and life threatening conditions. The commissioner or an appropriate designee may recommend corrective action to any employer or employee covered by this article to mitigate a perceived risk to the employer, any employee or to the general public.
(2) The commissioner or a designee shall produce a report in writing within ten work days to summarize the status of the emergency or unusual situation, including any subsequent inspection or investigation conducted pursuant to this section. All inspection reports shall detail the location of the emergency or unusual situation, the conditions that caused the emergency or unusual situation to the extent practical that a cause has been determined and shall detail the actions taken or recommendations considered necessary to correct or mitigate the emergency or unusual situation and shall include any recommendations to prevent future emergencies or unusual situations specific to the incident.
(c) Any employer or employee, or the commissioner, adversely affected or aggrieved by any action taken pursuant to this article, after all administrative remedies provided by this article have been exhausted, is entitled to judicial review pursuant to section four, article five, chapter twenty-nine-a of this code.
(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 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 is taking all available steps to safeguard employees against the hazards covered by the standard; and
(3) He 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 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 has taken and will take, with specific dates, to protect employees against the hazard covered by the standards;
(4) A statement of when he expects to comply with the standard and what steps he has taken and what steps he will take, with dates specified, to come into compliance with the standard; and
(5) A certification that he has informed his 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 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 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 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 agent a designee, 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 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 to appear, testify or produce evidence, 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 an 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 or her 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 that indicates 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: Provided, That an employer who obstructs an inspection or investigation authorized pursuant to this article is guilty of insubordination and is subject to disciplinary action up to and including termination.
(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 an authorized representative of the violation or danger. The notice may be in any form, but shall be reduced to writing, within seven work days after the imminent danger was first reported and shall set forth with reasonable particularity the grounds for the notice and shall be signed by the employee, employees or their an employee representative. A copy of the notice shall be provided the employer or his or her agent no later than the time of the inspection: Provided, That upon the request of the person giving the notice, his or her 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 the violation or danger exists, he or she shall make an inspection in accordance with the provisions of this section article as soon as practicable to determine if the violation or danger exists.
(2) The commissioner shall maintain records of the results of any such investigation, which shall be made available to any employee, employee representatives, the employer and to the public upon request.
(3) The authority of the commissioner to inspect any premises for purposes of investigating an alleged violation of safety standards shall not be is not limited to the alleged violation but shall extend extends 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) (4) Prior to Before 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 considers necessary to carry out his responsibilities under this article, including rules dealing with the inspection of an employer's or owner's establishment.
(g) The commissioner shall produce an annual report on or before December 31 of each year summarizing the number of complaints received for the previous two calendar years, specifying the nature of the complaints and summarizing the disposition of each complaint, incident, inspection, investigation or violation of this article.
NOTE: The purpose of this bill is to require implementation of the 1987 WV Occupational Safety and Health Act by requiring the development of standards and legislative rules by June 30, 2011. The bill repeals the WV OSHA Commission. Rule-making authority of the commission is transferred to the Commissioner of Labor who shall enforce the provisions of the act.
Strike-throughs indicate language that would be stricken from the present law, underscoring indicates language that would be added.