H.R.3160 - Comprehensive Occupational Safety and Health Reform Act102nd Congress (1991-1992)
|Sponsor:||Rep. Ford, William D. [D-MI-15] (Introduced 08/01/1991)|
|Committees:||House - Education and Labor; Post Office and Civil Service|
|Committee Reports:||H.Rept 102-663 Part 1|
|Latest Action:||House - 07/09/1992 Reported (Amended) by the Committee on Education and Labor. H. Rept. 102-663, Part I. (All Actions)|
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Summary: H.R.3160 — 102nd Congress (1991-1992)All Information (Except Text)
Reported to House amended, Part I (07/09/1992)
Comprehensive Occupational Safety and Health Reform Act - Amends the Occupational Safety and Health Act of 1970 (OSHA) with respect to occupational safety and health programs, committees, employee representatives, coverage, standards, enforcement, antidiscrimination, training and education, hazard and illness evaluation, State plans, and victims' rights.
Title I: Safety and Health Programs - Amends OSHA to establish requirements for each employer to set up and carry out a written occupational safety and health program that includes methods and procedures for: (1) identifying, evaluating, and documenting hazards; (2) correcting them; (3) providing occupational safety and health services, including emergency response and first aid procedures; (4) employee participation in implementing such program, including, where applicable, a safety and health committee; (5) providing safety and health training and education to employees and committee members; (6) designating employer representatives qualified to and responsible for identifying hazards and initiating corrective action; and (7) at a worksite where employees of two or more employers work, protecting employees from hazards under the other employers' control.
Directs the Secretary of Labor (the Secretary) to issue final regulations on the required employer occupational safety and health programs (covering employee training and education as well as including annual refresher courses) within one year of the effective date of this Act, with such regulations to take effect within 18 months after such effective date.
Title II: Safety and Health Committees and Employee Safety and Health Representatives - Amends OSHA to require each employer of 11 or more employees (each for 20 or more hours per week) to provide for: (1) safety and health committees; and (2) employee safety and health representatives.
Requires, in general, such employers to establish such a committee at each worksite, but authorizes the Secretary to modify application of this requirement to: (1) an employer whose employees do not primarily report to or work at a fixed location; (2) covered employers at worksites where less than 11 of their employees are employed; and (3) worksites where employees of more than one employer are employed.
Requires committee membership to consist of elected or appointed employee representatives and up to an equal number of employer representatives. Requires the committee to be cochaired by an employer representative and an employee representative.
Grants each committee the reasonable right to: (1) review occupational safety and health related employer programs, incidents of death, injury, or illness, complaints of hazards, the employer's work injury and illness records (other than personally identifiable medical information), and other related reports and documents; (2) conduct worksite inspections (and related employee interviews) at least once every three months and in response to complaints; (3) conduct meetings at least once every three months; (4) observe the measurement of employee exposure to toxic materials and harmful physical agents; (5) establish procedures for exercising committee rights; (6) make advisory recommendations for improvements and corrections; and (7) accompany the Secretary's representative during certain physical inspections of the worksite.
Requires the employer to permit committee members to take such time from work as is reasonably necessary to exercise committee rights, without any loss of pay or benefits for such time.
Directs the Secretary to issue, within one year of the effective date of this Act, final regulations for the functioning of such committees. Sets forth procedures for selection of employee representatives by and from nonmanagerial employees.
Authorizes the Secretary, upon the employer's application, to approve establishment of an alternative method of employee participation in worksite health and safety activities in a manner at least as effective as committee participation, if such alternative mechanism meets specified conditions.
Title III: Coverage - Revises the OSHA definition of employer to include the Federal Government (except certain congressional employees) and State and local governments, thus extending OSHA coverage to public employees. (Includes under such OSHA coverage the executive and judicial branches and the following agencies of the legislative branch: the Botanic Garden, the General Accounting Office, the Government Printing Office, the Library of Congress, the Office of Technology Assessment, the Congressional Budget Office, and the Copyright Royalty Tribunal.)
Directs the Committee on House Administration of the House of Representatives to establish and maintain an effective and comprehensive occupational safety and health program which meets specified OSHA and other requirements.
Authorizes the Secretary to cede OSHA jurisdiction to a Federal agency with respect to specified standards or regulations affecting occupational safety and health of some or all employees within that agency's regulatory jurisdiction, if the agency has promulgated and is enforcing standards and regulations so that its employees are being protected at least as effectively as they would be by the Secretary.
Declares that nothing in OSHA shall apply to working conditions covered by the Federal Mine Safety and Health Act of 1977.
Applies OSHA to employment performed in the Federal nuclear facilities under the control or jurisdiction of the Department of Energy.
Extends an employer's duties under OSHA to all employees working at the place of employment (even if they are not the employer's employees).
Title IV: Occupational Safety and Health Standards - Revises provisions for OSHA standards.
Requires specified timeframes for setting such standards after the Secretary has received: (1) a recommendation of an advisory committee, the Secretary of Health and Human Services (HHS), or the Administrator of the Environmental Protection Agency; or (2) a petition from an interested person setting forth with reasonable particularity the facts claimed to establish that a standard should be promulgated, modified, or revoked. Directs the Secretary, within 90 days after such receipt, to publish a response stating whether the Secretary intends to publish a proposed rule with respect to such standard, or if not, the reasons for the decision not to publish such a rule. Directs the Secretary, if such rule is intended to be published, to do so within 12 months after the decision.
Directs the Secretary to: (1) afford interested persons a period of at least 30 days to submit written data or comments after publication of a proposed rule promulgating, modifying, or revoking an OSHA standard; and (2) issue a final rule within 18 months after publication of a proposed rule.
Allows any adversely affected person to petition for judicial review, in the U.S. court of appeals for the appropriate circuit, of the Secretary's refusal or failure to issue such rules or standards. Requires that such a petition to appeal the Secretary's determination not to propose a rule with respect to a standard be filed within 60 days after publication of such determination. Requires set-aside of the Secretary's determination if it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Allows a petition to appeal the Secretary's failure to publish a proposed rule within the required 12-month time frame to be filed at any time after such time period has elapsed. Directs the reviewing court to compel the Secretary to take any such action that is found to have been unlawfully withheld or unreasonably delayed. Provides that the withholding or delaying of action shall not be justified by the Secretary's desire to consult with, or receive approval from any other Federal agency or executive official, except where this is required by applicable law and pursued in timely fashion.
Revises the definition of "occupational safety and health standard" to mean a standard which addresses a significant risk to the safety or health of employees by requiring conditions, or the adoption or use of one or more practices, means, methods, operations, or processes that most adequately assure, to the extent feasible, safe and healthful employment and places of employment.
Requires each OSHA standard also to prescribe requirements for recording or reporting a work-related illness determined as a result of a medical examination or test conducted under the standard.
Directs the Secretary to place in the public record, within ten days after receipt, all written comments and communications and a summary of all verbal communications with parties outside the Department of Labor (DOL) (including communications with executive branch officials, but not including communications with the President) regarding promulgation, modification, or revocation of an OSHA standard.
Directs the Secretary, in cooperation with the Secretary of HHS and in addition to other OSHA standards, to modify and establish exposure limits for toxic materials and harmful physical agents on a regular basis in a specified manner. Directs the Secretary of HHS, acting through the National Institute for Occupational Safety and Health (NIOSH), to: (1) regularly evaluate available scientific evidence, data, and information to determine if such exposure limits should be modified or be established to protect exposed employees from material impairment of health or functional capacity; and (2) at least every three years, on the basis of such evaluation, develop and transmit to the Secretary recommendations identifying materials and agents for which exposure limits should be modified or established to protect employees from such impairment. Directs the Secretary: (1) within 30 days of receipt of such recommendations, to publish them and provide a 30-day public comment period; (2) within six months of their receipt, to evaluate them and the public comments and publish a proposed rule for the exposure limits of each material and agent for which the Secretary of HHS has made a recommendation (explaining why any proposed limit is not the same as a recommended limit); (3) within one year of publication of the proposed limits, to issue a final standard (explaining why any final limit is not the same as the recommended limit); and (4) to establish or modify such limits whenever warranted, in addition to a periodic review.
Directs the Secretary, within two years after the effective date of this Act, to promulgate final standards on exposure monitoring and medical surveillance programs, including specified requirements.
Directs the Secretary to issue a final standard on ergonomic hazards to protect employees from work-related musculoskeletal disorders, including specified requirements, within two years after the effective date of this Act.
Sets forth timetables for the Secretary to issue various OSHA final standards.
Requires that emergency temporary standards: (1) be issued based on the best available evidence; and (2) remain in effect for no more than 18 months (currently six months).
Title V: Enforcement - Revises OSHA enforcement provisions.
Provides that time spent by an employee in accompanying the Secretary's representative on an OSHA inspection shall be deemed to be hours worked, with no loss of pay, benefits, or seniority.
Requires the Secretary to notify employees or their representative, within 30 days after receipt of their request for inspection, of the Secretary's determination that there are no reasonable grounds to believe a violation or danger exists.
Provides that employees or employee representatives may give notice to the Secretary's authorized representative of any violation of OSHA that threatens physical danger. (Current law authorizes them to give notice, also, of: (1) safety or health standards violations that threaten physical damage; and (2) of the imminent danger of such damage.) Requires that a copy of any such notice (if written) or a summary of the notice (if oral) be given to the employer or employer's agent no later than at the time of inspection. Eliminates the requirement that such notice be signed by the employees or employee representatives (but retains the requirement that the grounds of the notice be set forth with reasonable particularity).
Directs the Secretary also to make a special inspection upon notification from any Federal or State agency that there are reasonable grounds to believe that a violation of OSHA or a safety and health standard under specified OSHA provisions exists that threatens physical harm (as well as upon notification by an employee or employee representative as in current law).
Directs the Secretary to establish and carry out a special emphasis inspection program for conducting inspections of industries or operations where existing hazards or newly recognized or new hazards introduced into work sites warrant more intensive than normal inspections. Requires annual designation of the industries and operations for such program and the number of inspections planned and number of enforcement personnel required. Requires that special emphasis inspections be in addition to other programmed and complaint inspections conducted under OSHA before the effective date of this Act. Requires a report on such program in the Secretary's annual OSHA report to the Congress.
Requires the Secretary to investigate any work-related death or serious incident (i.e. one resulting in hospitalization of two or more employees). Requires the employer to: (1) notify the Secretary of any death or serious incident occurring in a place of employment covered by OSHA; and (2) prevent the destruction or alteration of evidence that would assist in investigating such death or incident.
Revises provisions for abatement of serious hazards during employer contests. Requires the correction period to begin to run upon receipt of citation for each violation characterized by the Secretary as serious, willful or repeated. Provides that an employer's filing of notice of contest shall not operate as a stay of the correction period for such a violation. Authorizes the Occupational Safety and Health Review Commission (the Commission) to stay the running of such period, upon an employer's motion, after consideration of the public interest and whether: (1) the employer has demonstrated a likelihood of success on the merits; (2) the employer will suffer irreparable harm absent a stay; and (3) issuance of a stay will substantially injure the other parties.
States that the Secretary is not barred from inspecting a place of employment or from issuing a citation by the pendency of an employer contest before the Commission.
Provides that the six-month time limit (on the issuance of citations) does not apply to a notification of penalty.
Requires employers to verify the abatement of a serious, willful, or repeated violation in writing to the Secretary within 30 days after the correction period has expired. Requires employers, within ten days after verification of abatement, to prominently post notice of such abatement at or near each place the violation occurred and to make a copy of the verification available to employers and employee representatives. Directs the Secretary to issue regulations implementing such abatement verification and notice requirements.
Grants employees the right to contest: (1) citations' designations of the character of the violation (in addition to contesting the abatement period, as in current law); and (2) proposed penalties as inadequate.
Grants employee representatives the right to participate in other proceedings (as well as hearings) conducted under specified OSHA enforcement procedures.
Requires, if the Secretary intends to withdraw or modify a citation as a result of any agreement with the employer, the Commission's rules of procedure to provide for prompt notice to affected employees or their representatives. Grants employees or their representative, regardless of whether they have previously elected to participate in the proceedings, the right to file a notice alleging that the proposed agreement fails to effectuate the purposes of OSHA within 15 days after receipt of notice of the agreement. Directs the Secretary to consider the matter and, upon determination to proceed with the agreement, respond with particularity to the objections. Grants employees or their representative, within 15 days after the Secretary's response, the right to a hearing upon request to the Commission. Provides that if the Commission determines the proposed agreement fails to effectuate the purposes of OSHA, the proposed agreement shall not be entered as a Commission order and the citation shall not be withdrawn or modified in accordance with the proposed agreement.
Revises OSHA provisions for restraining imminent dangers. Directs the Secretary to inform the employer and the affected employees and request that a condition or practice that poses an imminent danger be corrected immediately or that employees be immediately removed from exposure to such danger. Requires such actions if the Secretary determines, on the basis of an inspection or investigation, that a condition or practice in the place of employment is such that an imminent danger to safety or health exists which could reasonably be expected to cause death, serious physical harm, or permanent impairment of health or functional capacity of employees if not corrected immediately. Directs the Secretary to post a notice in the workplace if the employer refuses to comply with the Secretary's request. Requires that such notice identify the source of the imminent danger. Grants employees the right to refuse to perform a duty that has been identified as the source of an imminent danger by such a notice, and prohibits discrimination against them for such refusal. Subjects an employer to a civil penalty of from $10,000 to $50,000 for each day during which an employee continues to be exposed if the employer does not immediately correct the hazard referred to in the posted notice or remove all employees from exposure to it, unless the Commission determines that the condition or practice is not covered by such imminent danger provisions.
Revises OSHA criminal penalties. Subjects to such penalties not only the employer but also certain officers, management officials, and supervisors. Increases the maximum amount of fines and the length of prison terms for specified violations, including those for a willful violation causing death, an improper advance notice of an inspection, or a false statement. Establishes criminal penalties for a willful violation that causes serious bodily injury (current law covers employee death only). Prohibits a penalty or fine which is imposed on a director, officer, or agent of an employer from being paid out of the employer's assets on behalf of that individual. Provides that nothing in OSHA shall preclude State and local law enforcement agencies from conducting criminal prosecutions in accordance with State or local laws.
Allows a Commission member to remain in office until his or her successor has taken office.
Provides for the vacating of specified citations for violations if the employer demonstrates that: (1) employees have been provided with the proper training and equipment to prevent such a violation; (2) the employer has established and adequately communicated to employees work rules designed to prevent such a violation, and such rules have been effectively enforced when a violation is discovered; (3) the failure of employees to observe work rules led to the violation; and (4) the employer has taken reasonable steps to discover any violation of a work rule.
Title VI: Protection of Employees from Discrimination - Revises OSHA antidiscrimination provisions to extend coverage to an employee's: (1) reporting any injury, illness, or unsafe condition to the employer, employer's agent, safety and health committee, or employee safety and health representative; and (2) refusing to perform duties when reasonably apprehensive that doing so would result in serious injury to himself/herself or other employees, after having sought and been unable to obtain from the employer corrections of the circumstances causing such refusal.
Revises procedures for consideration of complaints of discrimination. Increases the period for filing such complaints from 30 to 180 days after the alleged discrimination. Requires the Secretary, within 60 days after receipt of the complaint, to investigate and notify the complainant and the alleged violator of the findings. Requires such findings to be accompanied by a preliminary order providing relief, if the Secretary has concluded that there is reasonable cause to believe a violation has occurred. Allows the alleged violator or the complainant to file, within 30 days, objections to the findings and/or the preliminary order, and to request a hearing on the record. Provides that such filing of objections shall not operate to stay any reinstatement remedy in the preliminary order. Allows the complainant to request a hearing on the record if the Secretary does not issue findings within 90 days after receipt of the complaint. Requires such hearings to be conducted expeditiously. Deems the preliminary order a final order not subject to judicial review if a hearing is not timely requested. Directs the Secretary to issue a final order within 120 days after the conclusion of such hearing. Allows such proceedings to be terminated at any time in the interim on the basis of a settlement agreement by the Secretary, the complainant, and the alleged violator.
Requires the Secretary, upon determination that a violation of antidiscrimination provisions has occurred, to order: (1) correction of the violation; (2) reinstatement to the former position with all compensation (including back pay), terms, conditions, and privileges of such employment; and (3) compensatory damages. Authorizes the Secretary, upon request of the complainant, to assess against the person against whom such order is issued all costs and expenses (including attorney's fees) incurred by the complainant in connection with bringing the complaint. Allows adversely affected or aggrieved persons to petition within 60 days to obtain review of such orders in the U.S. Court of Appeals for the appropriate circuit. Directs the Secretary to file a civil action in the appropriate U.S. district court to enforce such orders against persons who fail to comply. Authorizes such court to grant appropriate relief.
Sets forth the legal burdens of proof in determining whether a violation of such antidiscrimination provisions has occurred. Requires the complainant to demonstrate that the exercise of such a protected right was a contributing factor in the discharge or discrimination alleged. Prohibits ordering of relief if the employer demonstrates by clear and convincing evidence that the same unfavorable action would have been taken against the complainant in the absence of exercise of such protected rights.
Requires the Secretary's regulations to include provisions requiring employers to post employee rights protections under such OSHA antidiscrimination provisions.
Title VII: OSHA and NIOSH Training and Education - Revises OSHA provisions for training and education.
Includes education programs for employees and members of safety and health committees, as appropriate, among those programs which the Secretary of HHS is to conduct through NIOSH.
Requires the Secretary (of Labor) to develop training materials, model curricula, and programs to assist employers in: (1) providing the training and education required under the new provisions for employer occupational safety and health programs; and (2) complying with OSHA standards.
Title VIII: Recordkeeping and Reporting - Revises OSHA provisions relating to statistics to require the Secretary to collect information and conduct analyses that identify: (1) industries, employers, processes, operations, and occupations that have a high rate of injury or illness; (2) factors that cause or contribute to injuries and illnesses; and (3) workers' compensation costs associated with the injuries and illnesses. Requires the Secretary, in doing so, to establish: (1) an effective system for targeting inspections of worksites, especially those with a high potential for death, serious injury, or exposure to toxic materials or harmful physical agents; and (2) priorities for such inspections to ensure concentration of enforcement activity on such worksites. Requires such data to be publicly available in a form suitable for further statistical analysis, and to be used in setting safety and health standards, targeting inspections of individual establishments, and evaluating standard setting and enforcement programs.
Directs the Secretary to require each employer covered by OSHA to report: (1) each work-related death of an employee immediately upon knowledge; and (2) each serious incident resulting in hospitalization of two or more employees within 24 hours of the incident.
Revises OSHA requirements for employer records and reports to include (in addition to work-related deaths, injuries, and illnesses) work-related illnesses reported by an employee or an employee's physician, unless the employer makes a reasonable determination that the illness is not work-related. Provides that all such employer records and reports shall be made available to the Secretary, the Secretary of HHS, employees, and employee representatives.
Title IX: NIOSH - Revises OSHA provisions relating to duties of the Secretary of HHS acting through NIOSH.
Includes under hazard evaluation reports an evaluation of whether any hazardous condition or harmful physical agent found in the place of employment poses a risk to exposed employees. Directs the Secretary of HHS, if a final determination of hazard is not made within six months of a request, to provide to the employer and employees an interim report on the known or suspected hazards, a recommendation for control, and an estimate of the time in which a final determination will be made.
Directs the Secretary of HHS to identify major factors contributing to occupational injuries and deaths through accident investigations and epidemiological research.
Specifies that the authority of the Secretary of HHS, and of NIOSH, to inspect records extends to the Secretary's designees and contractors.
Directs the Secretary of HHS, through NIOSH (and in cooperation with other HHS agencies and the Secretary of Labor), to establish a national surveillance program to identify cases of occupational illnesses, deaths, and serious injuries. Requires coordination with State health agencies and Federal and State workers' compensation agencies under such program. Directs the Secretary of HHS to collect data each year on the number and characteristics of all occupational deaths and selected occupational illnesses and injuries. Requires, in making such selections, consideration of known frequency and severity of the disorder and of the size of the population at risk. Directs the Secretary of HHS to report on and analyze the occupational deaths, illnesses, and injuries collected under such program, and transmit such information to the Secretary of Labor, State health agencies, employers, employees, and other interested parties. Authorizes the Secretary of HHS to require an employer, through a physician or health professional employed by or under contract to the employer, to report information on occupational deaths, illnesses, and injuries.
Establishes NIOSH as a separate agency within the U.S. Public Health Service in the Department of HHS.
Title X: State Plans - Revises OSHA requirements for State plans to provide for: (1) development of safety and health programs and safety and health committees and training programs that are at least as effective as those under the new OSHA requirements; and (2) reporting requirements, protection of employee rights, and access to information that are at least as effective as those under OSHA or other Federal laws governing access to information related to OSHA.
Requires a State to enforce a Federal OSHA standard until a State standard at least as effective is in effect, if a State fails to adopt or promulgate such a standard within six months after the Federal standard is promulgated.
Requires the Secretary (of Labor) to: (1) promptly investigate complaints against a State plan if there are reasonable grounds to believe a deficiency exists; (2) investigate complaints alleging a deficiency in a State enforcement action within 30 days of receipt; and (3) within 30 days of completion of the investigation, transmit findings and recommendations for correction to the State and complainant (or notify the complainant if there are no reasonable grounds to believe a deficiency exists). Requires a State to respond as to what action it has taken on the Secretary's findings and recommendations within 30 days of their receipt. Directs the Secretary to issue a citation with reasonable promptness if, after receipt of the State's response, the Secretary believes a serious violation of OSHA exists for which the State has failed to issue a citation.
Requires the Secretary, upon determination that there are reasonable grounds to conclude there is a failure to comply substantially with any provision or assurance of the State plan, to: (1) notify the State and allow six months for correction of deficiencies; (2) institute proceedings for withdrawal of approval of the State plan, if the State has not corrected the deficiencies within six months (unless there are exceptional circumstances); and (3) during the pendency of such proceedings, exercise concurrent jurisdiction with the State over the safety and health issues that are subject to the State plan.
Requires States which are operating State safety and health plans to modify them to conform to this Act.
Title XI: Victim's Rights - Sets forth provisions for victims' rights under OSHA.
Defines a victim as: (1) an employee who has sustained a work-related injury or illness which is the subject of an OSHA inspection or investigation; or (2) the family member of an employee who either is killed or cannot reasonably exercise victim's rights as a result of such an injury or illness. Grants victims the right, on request, to: (1) meet with the Secretary or a representative respecting the inspection or investigation before the Secretary's decision to issue a citation or to take no action; (2) receive a free copy of any citation or report issued as a result of the inspection or investigation; (3) be informed of any notice of contest filed; (4) be provided an explanation of the rights of employees and employee representatives to participate in OSHA enforcement proceedings; and (5) be provided an opportunity to appear and make a statement before the parties conducting any settlement negotiations, before the Secretary agrees to withdraw or modify the citation. Provides that a victim shall have the same rights as an employee under OSHA enforcement procedures. Entitles a victim, if such victims' rights are violated, to declaratory relief, injunctive relief, recovery of costs of securing specified documents, and reasonable attorney's fees and costs. Directs the Secretary to take reasonable actions to inform victims of these rights.
Title XII: Worker's Compensation Study - Establishes the Federal Worker's Compensation Commission.
Directs the Commission to study worker's compensation laws and system with respect to: (1) the recommendations of the National Commission on State Workmen's Compensation Laws; (2) the feasibility of using worker's compensation data to target loss prevention activities on high risk occupations; (3) the laws' adequacy in providing for needs of injured workers, occupational illnesses and diseases, quality control and medical and rehabilitation costs with cost control, and time for recuperation and counseling before return to full-time work; (4) the administrative system's adequacy and the appropriateness of such laws as the exclusive remedy; (5) the relationship between worker's compensation, safety and health programs, and insurance rates and services; (6) the feasibility and appropriateness of transferring the branch of the Department of Labor involved in worker's compensation studies from the Employment Standards Administration to the Occupational Safety and Health Administration; and (7) the feasibility of preempting State worker's compensation laws with a national program.
Directs the Commission to evaluate factors responsible for differentials in worker's compensation insurance premiums in different States in high hazard occupations and recommend to Governors, State legislatures, and the Congress various ways of reducing injury rates and excessive worker's compensation costs in such occupations.
Directs the Commission to report to the Congress on the effect of preemption under the Employee Retirement Income Security Act of 1974 on State worker's compensation laws, and on whether employers have used preemption to undercut worker protection, coverage, and the premium structure under such State laws.
Directs the Commission to send a final report to the President and the Congress within two years after the effective date of this Act.
Title XIII: Effective Date - Sets forth the effective date of this Act, with specified exceptions.