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§21-3-1. Employers to safeguard life, etc., of employees; reports and investigations of accidents; orders of commissioner.
Every employer shall furnish employment which shall be reasonably safe for the employees therein engaged and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render employment and the place of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees: Provided, That as used in this section, the terms "safe" or "safety" as applied to any employment, place of employment, place of public assembly or public building, shall include, without being restricted hereby, conditions and methods of sanitation and hygiene reasonably necessary for the protection of the life, health, safety, or welfare of employees or the public.

Every employer and every owner of a place of employment, place of public assembly, or a public building, now or hereafter constructed, shall so construct, repair and maintain the same as to render it reasonably safe.

When an accident occurs in any place of employment or public institution which results in injury to any employee, the employer or owner of such place of employment or public institution, when the same shall come to his knowledge, shall provide the commissioner of labor the necessary information as to cause of the injury, on blanks furnished free of charge to the employer and prescribed by the commissioner of labor.

To carry out the provisions of this chapter the commissioner of labor shall have the power to investigate and prescribe that reasonable safety devices, safeguards, or other means of protection be adopted for the prevention of accidents in every employment or place of employment, and to make, modify, repeal, and enforce reasonable general orders, applicable to either employers or employees, or both, for the prevention of accidents.

All orders of the commissioner of labor shall be prima facie lawful and reasonable, and shall not be held invalid because of any technical omission, provided there is substantial compliance with the provisions of this chapter.

§21-3-2. Guarding machinery and dangerous places; standards for construction of scaffolding, hoists and temporary floors; first aid equipment.
All power-driven machinery, including all saws, planers, wood shapers, jointers, sandpaper machines, iron mangles, emery wheels, ovens, furnaces, forges and rollers of metal; all projecting set screws or moving parts; all drums, cogs, gearing, belting, shafting, flywheels and flying shuttles; all laundry machinery, mill gearing and machinery of every description; all vats or pans and all receptacles containing molten metal or hot or corrosive fluids in any factory, mercantile establishment, mill or workshop, shall be so located, whenever possible, as not to be dangerous to employees, or, where possible shall be properly inclosed, fenced or otherwise protected. All dangerous places, in or about mercantile establishments, factories, mills or workshops, near to which any employee is obliged to pass or to be employed, shall, where practicable, be properly inclosed, fenced or otherwise guarded. No machine in any factory, mercantile establishment, mill or workshop, shall be used when the same is known to be dangerously defective, and no repairs shall be made to the active mechanism or operative part of any machine, when the machine is in motion. The state commissioner of labor is authorized to adopt the codes promulgated by the American standards association and approved by the United States department of labor, relating to the construction of scaffolding, hoists and temporary flooring of buildings two or more stories in height, in the course of erection. All factories, mills or workshops employing five or more people in the mechanical department shall keep on hand, easily accessible, necessary first aid equipment recommended by the bureau of labor and approved by the state health department.

§21-3-3. Guarding shafts, hatchways, wheel holes, elevators and electrical apparatus; requiring correction of unsafe conditions.
All hoistways, hatchways, elevators, wells and wheel holes in factories, mercantile establishments, mills or workshops, shall be securely fenced, inclosed or otherwise safely protected, and due diligence shall be used to keep all such means of protection closed, except when it is necessary to have the same open in order that such hatchways, elevators or hoisting apparatus may be used. All elevator cabs or cars, whether used for freight or passengers, shall be provided with some device, whereby the car or cab may be held, in the event of accident, to the shipper rope or hoisting machinery or controlling apparatus. If any elevator, machine, electrical apparatus or system of wiring, or any part or parts thereof, in any factory, mercantile establishment, mill or workshop, are in an unsafe condition, or are not properly guarded, where reasonable to guard the same, the owner, or lessee, or his agent, superintendent or other person in charge thereof, shall, upon notice from the commissioner of labor or factory inspector, remedy such unsafe condition within a reasonable time after receiving such notice.

§21-3-3a. National Electrical Code minimum standards.

In every factory, mercantile establishment, mill or workshop, the installation, alteration, repair, moving, removal, maintenance and conversion of all electrical wiring and apparatus and equipment shall be done in accordance with the minimum standards of safety and construction as set by the copyrighted National Electrical Code, as promulgated, from time to time, by the national fire protection association.

§21-3-4. Removal of safeguards.
No person shall remove or make ineffective any safeguard required by this article, during the active use or operation of the guarded machine or device, except for the purpose of immediately making repairs thereto, and all such safeguards so removed shall be promptly replaced.

§21-3-5. Control of machinery.
In every factory, mercantile establishment, mill or workshop, effective means shall be provided for immediately disconnecting the power, so that in case of need or accident any particular machine, group of machines, room or department, can be promptly and effectively shut down. Where machines are required to be started and stopped frequently, they shall, wherever practicable, be provided with tight and loose pulleys, clutch or other effective disengaging device. When provided with tight and loose pulleys, the shifting of the belt shall be accomplished by the use of a belt shifter, placed within easy reach of the operator. When a clutch or other disengaging device is used, an effective means for throwing such device into or out of engagement shall be provided, and shall be placed within easy reach of the operator. Where machines are directly connected with the prime mover (electric motor, steam, gas or gasoline engine, or other source of power), a switch, throttle, or other power controlling device shall be furnished and shall be placed within easy reach of the operator or his co-worker. Where machines are arranged in groups, rooms or departments, and power is supplied by a prime mover, located within the confines of such group, rooms or department, a switch, throttle, or other controlling device shall be furnished, and shall be placed within easy reach of the operators affected, so that all shafting, transmitting machinery and machines of such group, room or department, can be simultaneously shut down. Where machines are arranged in groups, rooms or departments, and are supplied by power through the use of main or line shafts receiving power from some prime mover located without the group, room or department, the power receiving wheel or such main or line shaft shall, wherever possible, be provided with a friction clutch, or other effective power disengaging device, with suitable means for operating the clutch, or power disengaging device, and these means shall be placed within the confines of such group, room or department, and within easy reach of employees or operatives affected, so that all machines, shafting and other transmission machinery within such group, room or department, can be simultaneously shut down. In addition to such safeguard, communication, consisting of speaking tubes, electric bells, electric colored lights, or other approved and effective means, shall be provided in all cases covered by this section between each such group, room or department and the room in which the engineer or prime mover is located, so that in case of need or accident the motive power of such group, room or department can be promptly stopped or controlled.

§21-3-6. Stairways, passageways and lights; overloading floors or walls; space between machines.
In all factories, mercantile establishments, mills or workshops, proper and substantial handrails shall be provided on all stairways, and the treads thereon shall be so constructed as to furnish a firm and safe foothold. A proper light shall be kept burning by the owner or lessee in all main passageways, main hallways, at all main stairs, main stair landings and shafts, and in front of all passenger or freight elevators, upon the entrance floors, and upon other floors, on every workday of the year, from the time the building is open for use until it is closed, except at times when the influx of natural light shall make artificial light unnecessary. No floor space or any work room in any factory, mercantile establishment, mill or workshop, shall be so overloaded with machinery or other materials as thereby to cause serious risk to or endanger the life or limb of any employee, nor shall there be permitted in any such establishment a load in excess of the safe sustaining power of the floors and walls thereof. Machines shall not be placed so close together as to be a serious menace to those who have to pass between them. Passageways shall be of ample width, well lighted and free from obstruction.

§21-3-7. 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 jurisdiction.

Applications for permits to operate a steam boiler must be accompanied by a sworn statement made by the owner or operator of such boiler, setting forth the condition of the boiler and its appurtenances at which time, if the facts disclosed by such statement meet the safety requirements established under this article, the commissioner of labor shall issue a temporary permit, which shall be valid until such 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 steam boiler: Provided, That boilers which are insured by an insurance company operating in this state and which are inspected by such insurance company's boiler inspector shall not be subject to inspection by the state department 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 prescribe rules 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 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 permit to operate a steam boiler, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars. Every day a steam boiler requiring a permit to operate is operated without such permit shall be considered a separate offense.

The commissioner may charge such fee as he determines reasonable for the inspection of boilers by the department 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.

§21-3-8. Smoking where prohibited by sign.
Every person who shall light a pipe, cigar or cigarette in, or who shall enter with a lighted pipe, cigar or cigarette, any factory, mercantile establishment, mill or workshop in which is posted in a conspicuous place over and near each principal entrance a notice in plain English letters, stating that no smoking is allowed in such building, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty nor more than one hundred dollars for each separate offense.

§21-3-9. Fire escapes.
In all factories, mercantile establishments, mills or workshops, sufficient and reasonable means of escape in case of fire shall be provided, and such means of escape shall at all times be kept free from any obstruction and shall be kept in good repair and ready for use, and shall be plainly marked as such. The commissioner of labor or factory inspector may order fire escapes erected on the outside of buildings used as factories, mercantile establishments, mills or workshops which are two or more stories in height, whenever deemed by the commissioner of labor or factory inspector to be necessary.

§21-3-10. Food or meals in factories.
No employee shall take or be allowed to take food into any room or apartment in any factory, mercantile establishment, mill or workshop, where white lead, arsenic, or other poisonous substances, or injurious or noxious fumes, dusts or gases under harmful conditions are present as the result of the business conducted by such factory, mercantile establishment, mill or workshop, and notice to this effect shall be posted in each room or apartment. Employees shall not remain in any such room or apartment during the time allowed for meals, and suitable provisions shall be made and maintained by the employer, when practicable, for enabling the employees to take their meals elsewhere in such establishment.

§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 required in all situations where employees are not afforded necessary breaks and/or permitted to eat lunch while working

§21-3-11. Seats for female employees.
Every person, firm or corporation employing females in any factory, mercantile establishment, mill or workshop in this state shall provide a reasonable number of suitable seats for the use of such female employees, and shall permit the use of such seats by them when they are not necessarily engaged in active duties for which they are employed, and shall permit the use of such seats at all times when such use would not actually and necessarily interfere with the proper discharge of the duties of such employees, and, where practicable, such seats shall be made permanent fixtures and may be so constructed or adjusted that, when not in use, they will not obstruct such female employee when engaged in the performance of her duties.

§21-3-12. Water closets.
Every factory, mercantile establishment, mill or workshop shall be provided with a sufficient number of water closets, and whenever both male and female persons are employed, separate water closets shall be provided for the use of each sex, and plainly marked by which sex they are to be used. No person or persons shall be allowed to use the closets assigned to the opposite sex. Such water closets shall be constructed in an approved manner and properly enclosed, and at all times kept in a clean and sanitary condition. The closets, where practicable, shall be located so that they shall have direct ventilation with the outside air. Where it is impracticable to locate the closets so as to have direct ventilation with the outside air, they shall be placed in an inclosure, and every such closet shall be properly and effectively disinfected and separately ventilated, and shall be properly lighted by artificial light, except when the influx of natural light makes artificial light unnecessary.

§21-3-13. Washing facilities and dressing rooms.
In all factories, mercantile establishments, mills or workshops, adequate washing facilities shall be provided for the employees, where necessary. When the labor performed by the employees is of such a character as to make customary or necessary a change of clothing by the employees, there shall be provided a sanitary and suitable dressing room or rooms. Separate dressing rooms and washing facilities shall be maintained for each sex.

§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 the department 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.

It shall be the duty of the attorney general and the several prosecuting attorneys, upon request of the commissioner of labor or any of his 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 shall violate any provision of this chapter or shall fail or refuse to perform any duty lawfully required within the time prescribed by the commissioner of labor or his authorized representatives, for which no penalty has been specifically provided, or shall fail, neglect, or refuse to obey any lawful order given, made or promulgated by the commissioner of labor or his authorized representatives, or shall interfere with, impede, or obstruct in any manner the commissioner of labor or his authorized representatives in the performance of his or their official duties, he shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than ten dollars nor more than fifty dollars, or shall be imprisoned for not exceeding six months, or both so fined and imprisoned, for each such offense; and each day such violation, omission, failure, or refusal continues shall be deemed a separate offense.

A justice of the peace shall have concurrent jurisdiction with the circuit court and other courts having criminal jurisdiction in his 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 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, inspectors and chief clerk.
The commissioner of labor, inspectors and chief clerk 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.

§21-3-16. Inclosure of streetcar platforms.
It shall be unlawful for any person, firm or corporation owning or operating a street railway in this state, or for any officer or agent thereof having charge or control of the management of such line or railway, or the cars thereof, operating electric, cable or other cars propelled either by steam, cable or electricity, which require the constant services, care or attention of any person or persons upon the platforms of any such car, to require or permit such services, attention or care by any of its employees, or any other person or persons, unless such person, firm or corporation, its officers or superintending or managing agents, have first provided the platforms of such car with a proper and sufficient inclosure constructed of wood, iron, glass or similar suitable material, sufficient to protect such employees from exposure to the winds and inclemencies of the weather.

Any person, firm or corporation who violates the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty nor more than one hundred dollars. Each day that such person, firm or corporation causes any of its employees to operate such car or cars in violation of the aforesaid provisions, or causes a car or cars to be used or operated in violation thereof, shall be deemed a separate offense: Provided, That the provisions of this section shall not apply to cars used and known as trailing cars.

§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, shall mean and include 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 and include 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.

(c) It shall be 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 employment.

(d) Any employer who violates the provisions of this section shall be liable to a penalty of not more than one hundred dollars for each and every violation. It shall be the duty of the commissioner of labor to enforce this section.

§21-3-18. Hazardous chemical substances; notice to employees; reports to commissioner; penalties.
(a) It is declared the policy of this state to require employers to disclose to employees the hazards of exposure in the work place to hazardous or toxic chemical substances and materials. For this purpose, the commissioner of labor shall establish and maintain, by rule or regulation, a list of chemical substances and materials which have been determined or are suspected to be hazardous or toxic to the health of employees who may be exposed to them in the course of employment. In establishing and maintaining such list, the commissioner may give consideration to any list made or hereafter made by the secretary of labor of the United States identifying or proposing to identify chemical substances and materials as hazardous or toxic, or setting standard levels of safe exposure thereto, as the same are published from time to time in the federal register. The commissioner shall publish and update, at least annually, such list of substances and materials and shall include in the publication thereof, for each listed substance or material, any standard levels of safe exposure published by said secretary in the federal register, giving due consideration to any changes made or proposed by said secretary in the secretary's list of hazardous or toxic chemical substances and materials, or in any standard levels of safe exposure established or proposed from time to time by said secretary, as the same are published in the federal register.

(b) The commissioner shall make copies of such list prepared under this section available to any employer requesting the same: Provided, That the commissioner shall limit such list to no more than six hundred such substances and materials to be selected from the lists included in 29 Code of Federal Regulations 1910.1000, Subpart Z, which the commissioner elects to include because of either frequency of use in the state, frequency of exposure or over exposure thereof to workers in the state, the seriousness of the effects of such exposure or other reason which the commissioner determines to be sufficient.

(c) Any employer of ten or more employees using or producing any such listed hazardous chemical substance or material shall conspicuously post a warning notice in the work area where any such substance or material is used, to read substantially as follows:

WARNING NOTICE

____________________________________________________________

(Name of hazardous chemical substance or material) is used at this work site.

Common symptoms of overexposure include the following:

Name of Employer
Any such notice required to be posted with regard to a mobile work site may be posted on the container or containers of the hazardous substance or material or in some other conspicuous place.

The employer shall include in the notice such common symptoms of overexposure as (1) may be published with the standard levels of safe exposure, or (2) certified to the employer by a physician employed for that purpose. Good faith reliance upon either such source of information shall be sufficient notice of such common symptoms.

(d) Any employer having notice of any incident of exposure to a listed hazardous chemical substance or material in excess of its standard level of safe exposure published by the commissioner shall within ten days thereof report to the commissioner the circumstances of such incident and provide a copy of the report to the employee.

(e) Any person or corporation that violates the provisions of this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars for each violation.

(f) The provisions of this section shall not apply to any coal mine, coal mining or coal processing plant, and any agricultural or horticultural activity, and any such mine, plant or activity is hereby exempted from the provisions of this section.

§21-3-19. Discrimination for use of tobacco products prohibited.

(a) It shall be 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 individual uses tobacco products off the premises of the employer during nonworking hours.

(b) This section shall 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 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 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 use.

§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 possessions, such as 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, shall be fined five hundred dollars for the first offense. An employer or agent thereof convicted a second time under this provision shall be fined one thousand dollars. For the third and any subsequent offense, the penalty shall be two thousand dollars.

§21-3-21. Special Revenue Fund for the Division of Labor; authorized deposits; disbursements; purpose.
There is hereby created 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: WV Code updated with legislation passed through the 2012 1st Special Session