Title III — S. 2621 (Introduced in Senate)

Sec. 301 General duty of employers

Section 5 (29 U.S.C. 654(a)(1)) is amended—

(1)

in subsection (a), by amending paragraph (1) to read as follows:

“(1) shall furnish employment and a place of employment that are free from recognized hazards—

“(A) that are causing or are likely to cause death or serious physical harm and that the employer creates or controls; or

“(B) to which the employer exposes any employee of the employer or any other person performing work at the place of employment; and”

(2)

by adding at the end the following new subsection:

“(c) Each employee or other person exposed to a hazard in violation of subsection (a) may constitute a separate violation.”

Sec. 302 Occupational safety and health standards

Section 6(a) (29 U.S.C. 655(a)) is amended by striking “Without regard” and all that follows through “affected employees.” and inserting the following: “(1) Without regard to chapters 5 and 6 of title 5, United States Code, or to the other subsections of this section, the Secretary shall—

“(A) as soon as practicable during the period beginning with the effective date of this Act and ending 2 years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless the Secretary determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees; and

“(B) by rule, not later than 2 years after the effective date under section 601(a) of the Protecting America’s Workers Act, update any national consensus standard that has been promulgated or incorporated by reference pursuant to this subsection, except that such a standard shall not be updated pursuant to this subparagraph, if—

“(i) the standard has been superseded by a standard promulgated pursuant to subsection (b); or

“(ii) the Secretary determines such update would not result in improved health or safety for specifically designated employees.

“(2) In the event of conflict among any such standards, including national consensus standards, or in the event of a consolidation of national consensus standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.

“(3) No standard, rule, or regulation promulgated under this Act, on or after the date of enactment of the Protecting America’s Workers Act, shall reduce the protection afforded by a health or safety standard, rule, regulation, or national consensus standard in effect on the day before the date of enactment of such Act.”

Sec. 303 Posting of employee rights

Section 8(c)(1) (29 U.S.C. 657(c)(1)) is amended by adding at the end the following new sentence: “Such regulations shall include provisions requiring employers to post for employees or other individuals performing work for the employer information on the protections afforded under section 11(c).”.

Sec. 304 Employer reporting of work-related injuries, illnesses, deaths, and hospitalizations; prohibition on discouraging employee reporting

Section 8(c)(2) (29 U.S.C. 657(c)(2)) is amended by adding at the end the following new sentences: “Such regulations shall require site-controlling employers to keep a site log for all recordable injuries and illnesses occurring among all employees on the particular site, including employees of the site-controlling employer or others who are performing work at the particular site (including independent contractors). Such regulations shall require employers to promptly notify the Secretary of any work-related death or work-related injury or illness that results in the in-patient hospitalization of an employee for medical treatment, amputation, or loss of an eye, and shall prohibit the employer from adopting or implementing policies or practices by the employer that have the effect of discouraging accurate recordkeeping and the reporting of work-related injuries or illnesses by any employee or in any manner discriminates or provides for adverse action against any employee for reporting a work-related injury or illness. For purposes of this paragraph, the term site-controlling employer means the employer that has primary control over a work site at which employees of more than one employer work, such as by hiring or coordinating the work of other employers working at the site.”.

Sec. 305 No loss of employee pay for inspections

Section 8(e) (29 U.S.C. 657(e)) is amended by inserting after the first sentence the following: “Time spent by an employee participating in or aiding any such inspection shall be deemed to be hours worked and no employee shall suffer any loss of wages, benefits, or other terms and conditions of employment for having participated in or aided any such inspection.”.

Sec. 306 Investigations of fatalities and significant incidents

Section 8 (29 U.S.C. 657) is amended by adding at the end the following new subsection:

“(i) Investigation of fatalities and serious incidents

“(1) In general—The Secretary shall investigate any significant incident or an incident resulting in death that occurs in a place of employment.

“(2) Evidence preservation—If a significant incident or an incident resulting in death occurs in a place of employment, the employer shall promptly notify the Secretary of the incident involved and shall take appropriate measures to prevent the destruction or alteration of any evidence that would assist in investigating the incident. The appropriate measures required by this paragraph do not prevent an employer from taking action on a worksite to prevent injury to employees or substantial damage to property or to avoid disruption of essential services necessary to public safety, provided that if an employer takes such action, the employer shall notify the Secretary of the action in a timely fashion.

“(3) Definitions—In this subsection:

“(A) Incident resulting in death—The term incident resulting in death means an incident that results in the death of an employee.

“(B) Significant incident—The term significant incident means an incident that results in the in-patient hospitalization of 2 or more employees for medical treatment.”

Sec. 307 Prohibition on unclassified citations

Section 9 (29 U.S.C. 658) is amended by adding at the end the following:

“(d) No citation for a violation of this Act may be issued, modified, or settled under this section without a designation enumerated in section 17 with respect to such violation.”

Sec. 308 Victims’ rights

The Occupational Safety and Health Act of 1970 is amended by inserting after section 9 (29 U.S.C. 658) the following:

“9A. Victims' rights

“(a) Rights before the Secretary—A victim, or the representative of a victim, shall be afforded the right, with respect to an inspection or investigation conducted under section 8 to—

“(1) meet with the Secretary regarding the inspection or investigation conducted under such section before the Secretary’s decision to issue a citation or take no action;

“(2) receive, at no cost, a copy of any citation or report, issued as a result of such inspection or investigation, at the same time as the employer receives such citation or report;

“(3) be informed of any notice of contest or addition of parties to the proceedings filed under section 10(c); and

“(4) be provided notification of the date and time or any proceedings, service of pleadings, and other relevant documents, and an explanation of the rights of the employer, employee and employee representative, and victim to participate in proceedings conducted under section 10(c).

“(b) Rights before the Commission—Upon request, a victim or representative of a victim shall be afforded the right with respect to a work-related bodily injury or death to—

“(1) be notified of the time and date of any proceeding before the Commission;

“(2) receive pleadings and any decisions relating to the proceedings; and

“(3) be provided an opportunity to appear and make a statement in accordance with the rules prescribed by the Commission.

“(c) Modification of Citation—Before entering into an agreement to withdraw or modify a citation issued as a result of an inspection or investigation of an incident under section 8, the Secretary shall notify a victim or representative of a victim and provide the victim or representative of a victim with an opportunity to appear and make a statement before the parties conducting settlement negotiations. In lieu of an appearance, the victim or representative of the victim may elect to submit a letter to the Secretary and the parties.

“(d) Secretary Procedures—The Secretary shall establish procedures—

“(1) to inform victims of their rights under this section; and

“(2) for the informal review of any claim of a denial of such a right.

“(e) Commission procedures and considerations—The Commission shall—

“(1) establish procedures relating to the rights of victims to be heard in proceedings before the Commission; and

“(2) in rendering any decision, provide due consideration to any statement or information provided by any victim before the Commission.

“(f) Family liaisons—The Secretary shall designate at least 1 employee at each area office of the Occupational Safety and Health Administration to serve as a family liaison to—

“(1) keep victims informed of the status of investigations, enforcement actions, and settlement negotiations; and

“(2) assist victims in asserting their rights under this section.

“(g) Definition—In this section, the term victim means—

“(1) an employee, including a former employee, who has sustained a work-related injury or illness that is the subject of an inspection or investigation conducted under section 8; or

“(2) a family member (as further defined by the Secretary) of a victim described in paragraph (1), if—

“(A) the victim dies as a result of an incident that is the subject of an inspection or investigation conducted under section 8; or

“(B) the victim sustains a work-related injury or illness that is the subject of an inspection or investigation conducted under section 8, and the victim because of incapacity cannot reasonably exercise the rights under this section.”

Sec. 309 Right to contest citations and penalties

Section 10(c) (29 U.S.C. 659(c)) is amended—

(1)

in the first sentence—

(A)

by inserting after “that he intends to contest a citation issued under section (9)(a)” the following: “(or a modification of a citation issued under this section)”;

(B)

by inserting after “the issuance of a citation under section 9(a)” the following: “(including a modification of a citation issued under such section)”; and

(C)

by inserting after “files a notice with the Secretary alleging” the following: “that the citation fails to properly designate the violation as serious, willful, or repeated, that the proposed penalty is not adequate, or”;

(2)

by inserting after the first sentence, the following: “The pendency of a contest before the Commission shall not bar the Secretary from inspecting a place of employment or from issuing a citation under section 9.”; and

(3)

in the last sentence—

(A)

by inserting “employers and” after “Commission shall provide”; and

(B)

by inserting before the period at the end “, and notification of any modification of a citation”.

Sec. 310 Correction of serious, willful, or repeated violations pending contest and procedures for a stay

Section 10 (29 U.S.C. 659) is amended by adding at the end the following:

“(d) Correction of serious, willful, or repeated violations pending contest and procedures for a stay

“(1) Period permitted for correction of serious, willful, or repeated violations—For each violation which the Secretary designates as serious, willful, or repeated, the period permitted for the correction of the violation shall begin to run upon receipt of the citation.

“(2) Filing of a motion of contest—The filing of a notice of contest by an employer—

“(A) shall not operate as a stay of the period for correction of a violation designated as serious, willful, or repeated; and

“(B) may operate as a stay of the period for correction of a violation not designated by the Secretary as serious, willful, or repeated.

“(3) Criteria and rules of procedure for stays

“(A) Motion for a stay—An employer that receives a citation alleging a violation designated as serious, willful, or repeated and that files a notice of contest to the citation asserting that the time set for abatement of the alleged violation is unreasonable or challenging the existence of the alleged violation may file with the Commission a motion to stay the period for the abatement of the violation.

“(B) Criteria—In determining whether a stay should be issued on the basis of a motion filed under subparagraph (A), the Commission may grant a stay only if the employer has demonstrated—

“(i) a substantial likelihood of success on the areas contested under subparagraph (A); and

“(ii) that a stay will not adversely affect the health and safety of workers.

“(C) Rules of Procedure—The Commission shall develop rules of procedure for conducting a hearing on a motion filed under subparagraph (A) on an expedited basis. At a minimum, such rules shall provide the following:

“(i) That a hearing before an administrative law judge shall occur not later than 15 days following the filing of the motion for a stay (unless extended at the request of the employer), and shall provide for a decision on the motion not later than 15 days following the hearing (unless extended at the request of the employer).

“(ii) That a decision of an administrative law judge on a motion for stay is rendered on a timely basis.

“(iii) That if a party is aggrieved by a decision issued by an administrative law judge regarding the stay, such party has the right to file an objection with the Commission not later than 5 days after receipt of the administrative law judge’s decision. Within 10 days after receipt of the objection, a Commissioner, if a quorum is seated pursuant to section 12(f), shall decide whether to grant review of the objection. If, within 10 days after receipt of the objection, no decision is made on whether to review the decision of the administrative law judge, the Commission declines to review such decision, or no quorum is seated, the decision of the administrative law judge shall become a final order of the Commission. If the Commission grants review of the objection, the Commission shall issue a decision regarding the stay not later than 30 days after receipt of the objection. If the Commission fails to issue such decision within 30 days, the decision of the administrative law judge shall become a final order of the Commission.

“(iv) For notification to employees or representatives of affected employees of requests for such hearings and shall provide affected employees or representatives of affected employees an opportunity to participate as parties to such hearings.”

Sec. 311 Inaction by the Review Commission

Section 10 (29 U.S.C. 659), as amended by section 310, is further amended by adding at the end the following:

“(e) Inaction by review commission

“(1) In general—A petition for review of a decision or order issued by an administrative law judge that has been filed in a timely manner, but for which the Commission has failed to issue a final decision and order after 1 year of the acceptance of such petition because the Commission lacks a quorum, the decision or order for which such petition has been filed—

“(A) shall be deemed a final decision or order of the Commission; and

“(B) may be appealed pursuant to section 11(a).

“(2) Exception—Paragraph (1) shall not apply with respect to motions to stay filed under subsection (d)(3).”

Sec. 312 Conforming amendments

(a)

Violations designated as serious, willful, or repeated— The first sentence of section 10(b) (29 U.S.C. 659(b)) is amended by inserting “, with the exception of violations designated as serious, willful, or repeated,” after “(which period shall not begin to run”.

(b)

Judicial review— The first sentence of section 11(a) (29 U.S.C. 660(a)) is amended—

(1)

by inserting “(or the failure of the Commission, including an administrative law judge, to make a timely decision on a petition for a stay or other review)” after “an order of the Commission”;

(2)

by striking “subsection (c)” and inserting “subsection (c), (d), or (e)”; and

(3)

by inserting “(or in the case of a petition from a final Commission order regarding a stay under section 10(d), 15 days)” after “sixty days”.

(c)

Failure To correct violations— Section 17(d) (29 U.S.C. 666(d)) is amended to read as follows:

“(d) Any employer who fails to correct a violation designated by the Secretary as serious, willful, or repeated and for which a citation has been issued under section 9(a) within the period permitted for its correction (and a stay has not been issued by the Commission under section 10(d)) may be assessed a civil penalty of not more than $7,000 for each day during which such failure or violation continues. Any employer who fails to correct any other violation for which a citation has been issued under section 9(a) within the period permitted for its correction (which period shall not begin to run until the date of the final order of the Commission in the case of any review proceeding under section 10 initiated by the employer in good faith and not solely for delay of avoidance of penalties) may be assessed a civil penalty of not more than $7,000 for each day during which such failure or violation continues.”

Sec. 313 Civil penalties

(a)

In General— Section 17 (29 U.S.C. 666) is amended—

(1)

in subsection (a)—

(A)

by striking “$70,000” and inserting “$126,749”;

(B)

by striking “$5,000” and inserting “$9,054”; and

(C)

by adding at the end the following: “In determining whether a violation is repeated, the Secretary or the Commission shall consider the employer’s history of violations under this Act and under State occupational safety and health plans established under section 18. If such a willful or repeated violation caused or contributed to the death of an employee, such civil penalty amounts shall be increased to not more than $250,000 for each such violation, but not less than $50,000 for each such violation, except that for an employer with 25 or fewer employees such penalty shall not be less than $25,000 for each such violation.”;

(2)

in subsection (b)—

(A)

by striking “$7,000” and inserting “$12,675”; and

(B)

by adding at the end the following: “If such a violation caused or contributed to the death of an employee, such civil penalty amounts shall be increased to not more than $50,000 for each such violation, but not less than $20,000 for each such violation, except that for an employer with 25 or fewer employees such penalty shall not be less than $10,000 for each such violation.”;

(3)

in subsection (c), by striking “$7,000” and inserting “$12,675”;

(4)

in subsection (d), as amended by section 312(c), by striking “$7,000” each place it occurs and inserting “$12,675”;

(5)

by redesignating subsections (e) through (i) as subsections (f) through (j), and subsections (j) through (l) as subsections (l) through (n) respectively; and

(6)

in subsection (j) (as so redesignated) by striking “$7,000” and inserting “$12,000”.

(b)

Inflation Adjustment— Section 17, as amended by subsection (a), is further amended by inserting after subsection (d) the following:

“(e) Amounts provided under this section for civil penalties shall be adjusted by the Secretary once each year, not later than January 15 of such year, to account for any percentage increase or decrease in the Consumer Price Index for all urban consumers, and consistent with the requirements of the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note).”

Sec. 314 Criminal penalties

(a)

In General— Section 17 (29 U.S.C. 666), as amended by section 313, is further amended—

(1)

by amending subsection (f) (as redesignated by section 313(a)(5)) to read as follows:

“(f)

“(1) Any employer who knowingly violates any standard, rule, or order promulgated under section 6 of this Act, or of any regulation prescribed under this Act, and that violation caused or significantly contributed to the death of any employee, shall, upon conviction, be punished by a fine in accordance with title 18, United States Code, or by imprisonment for not more than 10 years, or both, except that if the conviction is for a violation committed after a first conviction of such person under this subsection or subsection (j), punishment shall be by a fine in accordance with title 18, United States Code, or by imprisonment for not more than 20 years, or by both.

“(2) For the purpose of this subsection, the term employer means, in addition to the definition contained in section 3 of this Act, any officer or director.”

(2)

by amending subsection (g) (as redesignated by section 313(a)(5)) to read as follows:

“(g) Unless otherwise authorized by this Act, any person that knowingly gives, causes to give, or attempts to give or cause to give, advance notice of any inspection conducted under this Act with the intention of impeding, interfering with, or adversely affecting the results of such inspection, shall be fined under title 18, United States Code, imprisoned for not more than 5 years, or both.”

(3)

in subsection (h) (as redesignated by section 313(a)(5)), by striking “fine of not more than $10,000, or by imprisonment for not more than six months,” and inserting “fine in accordance with title 18, United States Code, or by imprisonment for not more than 5 years,”; and

(4)

by inserting after subsection (j) (as redesignated by section 313(a)(5)) the following:

“(k)

“(1) Any employer who knowingly violates any standard, rule, or order promulgated under section 6, or any regulation prescribed under this Act, and that violation caused or significantly contributed to serious bodily harm to any employee but does not cause death to any employee, shall, upon conviction, be punished by a fine in accordance with title 18, United States Code, or by imprisonment for not more than 5 years, or by both, except that if the conviction is for a violation committed after a first conviction of such person under this subsection or subsection (f), punishment shall be by a fine in accordance with title 18, United States Code, or by imprisonment for not more than 10 years, or by both.

“(2) For the purpose of this subsection, the term employer means, in addition to the definition contained in section 3 of this Act, any officer or director.

“(3) For purposes of this subsection, the term serious bodily harm means bodily injury or illness that involves—

“(A) a substantial risk of death;

“(B) protracted unconsciousness;

“(C) protracted and obvious physical disfigurement; or

“(D) protracted loss or impairment, either temporary or permanent, of the function of a bodily member, organ, or mental faculty.”

(b)

Jurisdiction for Prosecution Under State and Local Criminal Laws— Section 17 (29 U.S.C. 666), as amended by subsection (a), is further amended by adding at the end the following:

“(o) Nothing in this Act shall preclude a State or local law enforcement agency from conducting criminal prosecutions in accordance with the laws of such State or locality.”

Sec. 315 Prejudgment interest

Section 17(n) (29 U.S.C. 666(n)) (as redesignated by section 313(a)(5)) is amended by adding at the end the following: “Pre-final order interest on such penalties shall begin to accrue on the date the party contests a citation issued under this Act, and shall end upon the issuance of the final order. Such pre-final order interest shall be calculated at the current underpayment rate determined by the Secretary of the Treasury pursuant to section 6621 of the Internal Revenue Code of 1986, and shall be compounded daily. Post-final order interest shall begin to accrue 30 days after the date a final order of the Commission or the court is issued, and shall be charged at the rate of 8 percent per year.”.

Title III — Improving Reporting, Inspection, and Enforcement

III Improving Reporting, Inspection, and Enforcement