H. B. 2159
(By Delegates Morgan, Stephens and D. Poling)
[Introduced February 13, 2013; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to repeal §21-3-2, §21-3-3, §21-3-3a, §21-3-4, §21-3-5,
§21-3-6, §21-3-8, §21-3-9, §21-3-10, §21-3-11, §21-3-12,
§21-3-13, §21-3-16 and §21-3-18 of the Code of West Virginia,
1931, as amended; and to amend and reenact §21-3-7, §21-3-10a,
§21-3-14, §21-3-15, §21-3-17, §21-3-19, §21-3-20 and §21-3-21,
all relating to safety and welfare of employees; the
regulation of steam boilers by the Division of Labor; meal
breaks; the power of the Commissioner of Labor as to
witnesses; records and reports of the Commissioner of Labor;
employers not to require payment of fees for medical
examination as condition of employment; providing that
discrimination for use of tobacco products is prohibited;
prohibiting the use of video and other electronic surveillance
devices by employers; and continuing a special revenue fund for the Division of Labor.
Be it enacted by the Legislature of West Virginia:
That §21-3-2, §21-3-3, §21-3-3a, §21-3-4, §21-3-5, §21-3-6,
§21-3-8, §21-3-9, §21-3-10, §21-3-11, §21-3-12, §21-3-13, §21-3-16
and §21-3-18 of the Code of West Virginia, 1931, as amended, be
repealed; and that §21-3-7, §21-3-10a, §21-3-14, §21-3-15,
§21-3-17, §21-3-19, §21-3-20 and §21-3-21 be amended and reenacted
all to read as follows:
ARTICLE 3. SAFETY AND WELFARE OF EMPLOYEES.
Regulation of operation of steam boilers.
Any person owning or operating a steam boiler carrying more
than fifteen pounds pressure per square inch (except boilers on
railroad locomotives subject to inspection under federal laws,
portable boilers used for agricultural purposes, boilers on
automobiles, boilers of steam fire engines brought into the state
for temporary use in times of emergency for the purpose of checking
conflagrations, boilers used in private residences which are used
solely for residential purposes, any sectional boilers, small
portable boilers commonly used in the oil and gas industry about
their wells and tool houses, and boilers under the jurisdiction of
the United States) in this state shall first obtain a permit to operate a steam boiler from the Commissioner of Labor, or from an
inspector working under his or her jurisdiction.
Applications for permits to operate a steam boiler must be
accompanied by a sworn statement made by the owner or operator of
such the boiler, setting forth the condition of the boiler and its
appurtenances at which time, if the facts disclosed by such the
statement meet the safety requirements established under this
article, the Commissioner of Labor shall issue a temporary permit,
which shall be valid until such the boiler has been inspected by a
boiler inspector authorized by the State Commissioner of Labor;
thereupon, if the boiler meets the safety requirements established
under this article, the Commissioner of Labor shall issue an annual
permit to operate such the steam boiler: Provided, That boilers
which are insured by an insurance company operating in this state
and which are inspected by such the insurance company's boiler
inspector shall not be subject to inspection by the state
department of labor Division of Labor, during any twelve months'
period during which an inspection is made by the insurance
company's boiler inspector.
The Commissioner of Labor or state boiler inspector shall have
the authority to inspect steam boilers in this state. To carry out the provisions of this section, the Commissioner of Labor shall
and regulations under which boilers may be
constructed and operated, according to their class. The
commissioner of labor shall be authorized to revoke any permit to
operate a steam boiler if the rules prescribed by the Commissioner
of Labor, or his or her authorized representative, are violated or
if a condition shall prevail which is hazardous to the life and
health of persons operating or employed at or around the boiler.
Any person or corporation who shall operate a steam boiler for
which a permit is necessary under the provisions of this section,
without first obtaining such a permit to operate a steam boiler,
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $100 nor more than $500. Every day a
steam boiler requiring a permit to operate is operated without such
a permit shall be considered a separate offense.
The commissioner may charge
such a fee as he or she determines
reasonable for the inspection of boilers by the department of labor
Division of Labor boiler inspector, of the commissioner's
authorized boiler inspection agency, for the processing of
inspection reports from insurance companies, for issuing annual
permits to operate boilers and for commissioning insurance company boiler inspectors. Such fees shall be established by a rule
promulgated in accordance with the provisions of chapter
twenty-nine-a of this code. No fee shall be charged for the
inspection of boilers used on mobile equipment or vehicles used for
occasional entertainment or display purposes.
§21-3-10a. Meal breaks.
During the course of a workday of six or more hours, all
employers shall make available for each of their employees, at
least twenty minutes for meal breaks, at times reasonably
designated by the employer. This provision
shall be is required in
all situations where employees are not afforded necessary breaks
and/or permitted to eat lunch while working.
§21-3-14. Power of commissioner as to witnesses; prosecution of
offenses; penalties; jurisdiction; exemption of coal
mining operations; recovery of civil penalties.
The Commissioner of Labor or any authorized representative of
department Division of Labor in the performance of any duty or
the execution of any power prescribed by law shall have the power
to administer oaths, certify to official acts, take and cause to be
taken depositions of witnesses.
shall be is the duty of the Attorney General and the several prosecuting attorneys, upon request of the Commissioner of
Labor or any of his or her authorized representatives, to prosecute
any violation of the law which it is made the duty of the said
Commissioner of Labor to enforce.
If any employer, employee, owner or other person
violates any provision of this chapter or shall fail or refuse
fails or refuses to perform any duty lawfully required within the
time prescribed by the Commissioner of Labor or his or her
authorized representatives, for which no penalty has been
specifically provided, or shall fail, neglect, or refuse fails,
neglects or refuses to obey any lawful order given, made or
promulgated by the Commissioner of Labor or his or her authorized
representatives, or shall interfere with, impede, or obstruct
interferes with, impedes or obstructs in any manner the
Commissioner of Labor or his or her authorized representatives in
the performance of his or her or their official duties, he or she
shall be is guilty of a misdemeanor and, upon conviction thereof
shall be fined not less than $10 nor more than $50, or shall be
imprisoned for confined in jail
not exceeding six months, or both
so fined and imprisoned confined, for each such offense; and each
day such the violation, omission, failure or refusal continues shall be deemed considered a separate offense.
justice of the peace magistrate shall have concurrent
jurisdiction with the circuit court and other courts having
criminal jurisdiction in his or her county for the trial of
offenses under this article. Those portions of all coal mining
properties and operations which are under the supervision of the
Department of Mines Office of Miners' Health, Safety and Training
are excepted from the operation of provisions of this article.
In lieu of the penalties heretofore provided in this section,
any such penalty may be recovered in a civil action in the name of
the State of West Virginia.
§21-3-15. Records and reports of commissioner.
chief clerk. The Commissioner of Labor
inspectors and chief clerk and his
or her authorized representatives shall make and keep full and
proper record of all their expenses, and of inspections and
statistics as to conditions, changes and improvements made for the
safety and welfare of employees affected by this article and the
Commissioner of Labor shall submit a proper report thereof to the
Governor, as provided in section four, article one of this chapter.
§21-3-17. Employers not to require payment of fees for medical examination as condition of employment; enforcement.
(a) The term "employer," as used in this section,
means and includes an individual, a partnership, an association, a
corporation, a legal representative, a trustee, receiver, trustee
in bankruptcy, and any common carrier by rail, motor, water, air or
express company doing business in or operating within the state.
(b) The term "employee"
shall mean means and includes every
person who may be permitted, required or directed by any employer,
as defined in subsection (a), in consideration of direct or
indirect gain or profit, to engage in any employment.
shall be is unlawful for any employer, as defined in
subsection (a) to require any employee or applicant for employment
to pay the cost of a medical examination as a condition of
(d) Any employer who violates the provisions of this section
shall be is liable to a penalty of not more than $100 for each and
every violation. It shall be the duty of the The Commissioner of
Labor to shall enforce this section.
§21-3-19. Discrimination for use of tobacco products prohibited.
shall be is unlawful for any employer, whether public
or private, or the agent of such employer to refuse to hire any individual or to discharge any employee or otherwise to
disadvantage or penalize any employee with respect to compensation,
terms, conditions or privileges of employment solely because such
the individual uses tobacco products off the premises of the
employer during nonworking hours.
(b) This section
shall does not apply with respect to an
employer which is a nonprofit organization which, as one of its
primary purposes or objectives, discourages the use of one or more
tobacco products by the general public.
(c) This section
shall may not prohibit an employer from
offering, imposing or having in effect a health, disability or life
insurance policy which makes distinctions between employees for
type of coverage or price of coverage based upon the employee's use
of tobacco products: Provided, That any differential premium rates
charged to employees must reflect differential costs to the
employer: Provided, however, That the employer must provide
employees with a statement delineating the differential rates used
by its insurance carriers.
(d) Nothing in this section
shall may be construed to prohibit
an employer from making available to smokers and other users of
tobacco products, programs, free of charge or at reduced rates, which encourage the reduction or cessation of smoking or tobacco
§21-3-20. Use of video and other electronic surveillance devices
by employers prohibited.
(a) It is unlawful for any employer or the agent or
representative of an employer, whether public or private, to
operate any electronic surveillance device or system, including,
but not limited to, the use of a closed circuit television system,
a video-recording device, or any combination of those or other
electronic devices for the purpose of recording or monitoring the
activities of the employees in areas designed for the health or
personal comfort of the employees or for safeguarding of their
such as including, but not limited to rest rooms,
shower rooms, locker rooms, dressing rooms and employee lounges.
(b) Any employer or agent thereof who violates any provision
of this section is guilty of a misdemeanor and,
if convicted upon
conviction thereof, shall be fined $500 for the first offense. An
employer or agent thereof convicted a second time under this
provision shall be fined $1,000. For the third and any subsequent
offense, the penalty shall be $2,000.
§21-3-21. Special Revenue Fund for the Division of Labor; authorized deposits; disbursements; purpose.
There is hereby
created continued in the State Treasury a
Special Revenue Fund to be known as the "Occupational Safety and
Health Fund" which shall consist of all gifts, grants, bequests,
transfers, appropriations or other donations or payments which may
be received by the Division of Labor from any governmental entity
or unit or any person, firm, foundation, or corporation for the
purposes of this section, and all interest or other return earned
from investment of the fund. Expenditures from the fund shall be
made by the Commissioner of the Division of Labor to provide
matching funds, or to reimburse the Division of Labor for providing
matching funds, to obtain federal funds for the administration of
an occupational safety and health consultation program under
contract with the federal Division of Labor.
NOTE: The purpose of this bill is to delete code provisions
which are either obsolete or related to functions now administered
by the U. S. Office of Safety and Health Administration (OSHA).
The bill further deals with the regulation of steam boilers by
the Division of Labor; meal breaks; the power of the Commissioner
of Labor as to witnesses; records and reports of the Commissioner
of Labor; providing that employers are not to require payment of
fees for medical examination as condition of employment. The bill
also provides that discrimination for use of tobacco products is
prohibited. It prohibits the use of video and other electronic surveillance devices by employers. And, continues a Special
Revenue Fund for the Division of Labor.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would