I

103D CONGRESS

2D SESSION H. R. 4597

To amend the Occupational Safety and Health Act of 1970.

IN THE HOUSE OF REPRESENTATIVES

JUNE 17, 1994

Mr. FAWELL (for himself, Mr. GOODLING, Mr. PETRI, Mr. GUNDERSON, Mr.

BALLENGER, Ms. MOLINARI, Mr. BARRETT of Nebraska, Mr. HOEKSTRA,

Mr. MCKEON, Mr. MILLER of Florida, Mr. GREENWOOD, Mr. PACKARD,

Mr. ARMEY, Mr. HEFLEY, Mr. CANADY, Mr. KNOLLENBERG, Mr. STENHOLM, Mr. UPTON, Mr. CUNNINGHAM, Mr. CASTLE, Mr. HANCOCK, Mr.

LEWIS of Florida, Mr. PORTER, and Ms. PRYCE of Ohio) introduced the

following bill; which was referred to the Committee on Education and

Labor

A BILL

To amend the Occupational Safety and Health Act of 1970.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Occupational Safety and Health Reform Act’’.

6 (b) REFERENCE.—Whenever in this Act an amend7 ment or repeal is expressed in terms of an amendment

8 to, or repeal of, a section or other provision, the reference
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1 shall be considered to be made to a section or other provi2 sion of the Occupational Safety and Health Act of 1970.

3 SEC. 2. CONGRESSIONAL COVERAGE.

4 The Occupational Safety and Health Act of 1970 (29

5 U.S.C. 668) is amended by redesignating sections 20

6 through 34 as sections 21 through 35, respectively, and

7 by adding after section 19 the following:

8 ‘‘COVERAGE OF THE HOUSE OF REPRESENTATIVES

9 ‘‘SEC. 20. (a) Each employing authority and instru10 mentality of Congress shall comply with section 5, with

11 the occupational safety and health standards issued under

12 section 6 and with any other requirements and regulations

13 issued under this Act.

14 ‘‘(b) The Secretary shall conduct random inspections

15 of places of employment under the jurisdiction or control

16 of employing authorities and the instrumentalities of Con17 gress. Such inspections shall be conducted at least once

18 during each Congress. The Secretary shall also respond

19 to any request that meets the conditions of section 8(f).

20 Such inspections shall identify each condition or practice

21 which the Secretary believes is a violation of a requirement

22 under section 5, of an occupational safety and health

23 standard issued under section 6, or of any regulation is24 sued under this Act. Upon completion of such inspection,

25 the Secretary shall report all such conditions and practices
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1 to the Director of Non-Legislative and Financial Services

2 of the House of Representatives.

3 ‘‘(c) The Director of Non-Legislative and Financial

4 Services of the House of Representatives, shall, as soon

5 after the receipt of a report under subsection (b) as is

6 practicable, appoint a special counsel to seek abatement

7 of any conditions and practices identified in such report

8 as not in compliance with the requirements of section 5,

9 6, 8, or any other provision of this Act and to assess ap10 propriate penalties against the employing authority or in11 strumentality of Congress for noncompliance with such re12 quirements. The requirements and criteria applicable to

13 the determination and assessment of civil and criminal

14 penalties under section 17 shall apply with respect to such

15 noncompliance. Conditions and practices which may result

16 in a criminal penalty under section 17 shall be referred

17 to the Attorney General for prosecution.

18 ‘‘(d) Any employing authority or instrumentality of

19 Congress which is assessed a penalty under subsection (c)

20 may appeal the assessment to the Office of Fair Employ21 ment Practices which shall afford an opportunity for a

22 hearing and shall thereafter issue a decision based on find23 ings of fact which affirms, modifies, or vacates the actions

24 of the special counsel appointed under subsection (c). Any

25 person adversely affected or aggrieved by the decision of
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1 the Office of Fair Employment Practices may obtain re2 view of such decision by the United States Court of Ap3 peals for the circuit in which such violation is alleged to

4 have occurred or by the Court of Appeals for the District

5 of Columbia Circuit under the standards and conditions

6 for review of orders by the Commission in section 11.

7 ‘‘(e)(1) No person shall discharge or in any manner

8 discriminate against any employee because such employee

9 has filed any complaint or instituted or caused to be insti10 tuted under or related to this section or has testified or

11 is about to testify in any such proceeding or because of

12 the exercise by such employee on behalf of such employee

13 or others of any right afforded by this section.

14 ‘‘(2) Any employee who believes that such employee

15 has been discharged or otherwise discriminated against by

16 any such person in violation of paragraph (1) may, within

17 60 days after such violation occurs, file a complaint with

18 the Office of Fair Employment Practices. Such office shall

19 provide for a hearing and issue an order based upon find20 ings of fact and conclusions of law. In such an order, such

21 office may require a person charged with committing a

22 violation of paragraph (1) to take appropriate affirmative

23 action, including rehiring or reinstatement of the employee

24 involved to the employee’s former position with back pay

25 and interest and may award a prevailing party a reason-
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1 able attorney’s fee. Any person adversely affected or ag2 grieved by the decision of such office may obtain review

3 of such decision by the United States court of appeals for

4 the circuit in which such violation is alleged to have oc5 curred or by the Court of Appeals for the District of Co6 lumbia circuit under the standards and conditions for re7 view of orders by the Commission under section 11.

8 ‘‘(f) For purposes of this section—

9 ‘‘(1) the term ‘employing authority’ has the

10 meaning given such term in the Fair Employment

11 Practices Resolution (House Resolution 558 of the

12 One Hundredth Congress, as adopted October 4,

13 1988, and incorporated into rule LI of the Rules of

14 the House of Representatives of the One Hundred

15 and Second Congress); and

16 ‘‘(2) the term ‘instrumentalities of the Con17 gress’ includes the Architect of the Capitol, the Li18 brary of Congress, the Congressional Budget Office,

19 the General Accounting Office, the Government

20 Printing Office, the Office of Technology Assess21 ment, and the United States Botanic Garden.’’.

22 SEC. 3. STANDARD SETTING.

23 (a) STANDARDS.—Section 6(b)(5) (29 U.S.C.

24 655(b)(5)) is amended to read as follows:
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1 ‘‘(5) The development of standards under this

2 section shall be based upon the latest scientific data

3 in the field and on such research, demonstrations,

4 experiments, and such other information as may be

5 appropriate. In establishing such standards, the Sec6 retary shall consider and make findings concerning

7 the appropriateness of the standard to the following

8 factors:

9 ‘‘(A) The standard is needed to address a

10 significant risk of material impairment to work11 ers and will substantially reduce that risk.

12 ‘‘(B) The standard is feasible.

13 ‘‘(C) There is a reasonable relationship be14 tween the costs and benefits of the standard.

15 ‘‘(D) The standard will provide protection

16 to workers in the most cost-effective manner

17 and minimize employment loss due to the

18 standard in the affected industries and sectors

19 of industries.

20 ‘‘(E) Whenever practicable, the standard

21 shall be expressed in terms of objective criteria

22 and of the performance desired.’’.

23 (b) STANDARD PRIORITIES.—The second sentence of

24 section 6(g) (29 U.S.C. 655(g)) is amended to read as

25 follows: ‘‘In determining the priority for establishing
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1 standards dealing with toxic materials or harmful physical

2 agents, the Secretary shall consider the number of workers

3 exposed to the substance, the nature and severity of poten4 tial impairment, and the likelihood of such impairment

5 based upon such information as the Secretary shall obtain

6 from the Environmental Protection Agency, the Depart7 ment of Health and Human Services, and other appro8 priate sources.’’.

9 (c) PROCEDURE.—Section 6(b)(1) (29 U.S.C.

10 655(b)(1)) is amended by striking out all after ‘‘Act’’ the

11 first time it appears and inserting in lieu thereof the fol12 lowing: ‘‘, the Secretary shall promulgate such rule in ac13 cordance with subchapter IV of chapter 5 of title 5, United

14 States Code, unless the Secretary determines on the basis

15 of the factors listed in section 583 of title 5, United States

16 Code, that such procedure would be inappropriate. The re17 quirements of this paragraph do not alter in any manner

18 the requirements otherwise applicable to the Secretary’s

19 action in promulgating an occupational health and safety

20 standard.’’.

21 (d) REGULATORY FLEXIBILITY ANALYSIS.—Section

22 6 (29 U.S.C. 655) is amended by adding at the end the

23 following:

24 ‘‘(h) In promulgating any occupational safety and

25 health standard under subsection (b), the Secretary shall
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1 perform a regulatory flexibility analysis described in sec2 tions 603 and 604 of title 5, United States Code.

3 ‘‘(i) In promulgating any occupational safety and

4 health standard under subsection (b), the Secretary shall

5 minimize the time, effort, and costs involved in the reten6 tion, reporting, notifying, or disclosure of information to

7 the Secretary, to third parties, or to the public to the ex8 tent consistent with the purpose of the standard. Compli9 ance with the requirement of this subsection may be in10 cluded in a review under subsection (f).’’.

11 SEC. 4. APPLICATION OF ACT.

12 (a) REPORTS.—Section 4(b)(3) (29 U.S.C.

13 653(b)(3)) is amended to read as follows:

14 ‘‘(3) The Secretary shall report on an annual basis

15 to the Congress on the number and nature of the com16 plaints the Secretary receives which the Secretary does not

17 respond to because of paragraph (1) of this subsection.

18 The Secretary shall include in such report the Secretary’s

19 recommendation for legislation to avoid unnecessary dupli20 cation and to achieve coordination between this Act and

21 other Federal laws.’’.

22 (b) PURPOSES.—Section 4 (29 U.S.C. 653) is amend23 ed by adding at the end the following:

24 ‘‘(c) In order to carry out the purposes of this Act

25 to encourage employer and employees in their efforts to
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1 reduce the number of occupational safety and health haz2 ards—

3 ‘‘(1) an employee participation committee or

4 plan—

5 ‘‘(A) in which employees participate,

6 ‘‘(B) which exists for the purpose, in whole

7 or in part, of dealing with employees concerning

8 the safety or health of working conditions or re9 lated matters, and

10 ‘‘(C) which does not have, claim, or seek

11 authority to negotiate or enter into collective

12 bargaining agreements with the employer or to

13 amend existing collective bargaining agreements

14 between the employer and any labor organiza15 tion,

16 shall not constitute a ‘labor organization’ for pur17 poses of section 8(a)(2) of the National Labor Rela18 tions Act or a representative for purposes of sections

19 1 and 2 of the Railway Labor Act, and

20 ‘‘(2) records of safety and health inspections,

21 audits, or reviews conducted by an employer and not

22 required by this Act shall not be required to be dis23 closed to the Secretary except as may be necessary

24 to determine eligibility for an exemption from in25 spection under section 8A.’’.
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1 SEC. 5. VARIANCES.

2 Section 6(d) (29 U.S.C. 655(d)) is amended by add3 ing at the end the following: ‘‘If the Secretary has failed

4 to act on an application for a variance within 180 days

5 of the filing of such application, the variance shall be

6 deemed to have been issued as of the date of such filing

7 unless the delay in the Secretary’s action is caused by ac8 tions or inactions of the applicant.’’.

9 SEC. 6. INSPECTIONS.

10 (a) TRAINING AND AUTHORITY OF SECRETARY.—

11 Section 8 (29 U.S.C. 657) is amended by redesignating

12 subsection (g) as subsection (l) and by adding after sub13 section (f) the following:

14 ‘‘(g) Inspections conducted under this section shall

15 be conducted by at least one individual who has training

16 in and is knowledgeable of the industry or types of hazards

17 being inspected.

18 ‘‘(h) The Secretary shall enter into agreements with

19 other Federal agencies and with States to train inspection

20 personnel of agencies which conduct inspections of employ21 ers to inspect places of employment to determine if em22 ployee fire protection is adequate and shall establish a sys23 tem for referral of fire hazards to the Secretary after noti24 fication to the employer, if the employer fails to take cor25 rective actions.
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1 ‘‘(i)(1) Except as provided in paragraph (2), the Sec2 retary shall not conduct routine inspections of, or enforce

3 any standard, rule, regulation, or order under this Act

4 with respect to, any person who is engaged in a farming

5 operation which does not maintain a temporary labor

6 camp and employs 10 or fewer employees or any employer

7 of not more than 10 employees if such employer is in8 cluded within a category of employers having an occupa9 tional injury or a lost work day case rate (determined

10 under the Standard Industrial Classification Code for

11 which such data are published) which is less than the na12 tional average rate as most recently published by the Sec13 retary acting through the Bureau of Labor Statistics

14 under section 25.

15 ‘‘(2) Paragraph (1) shall, in the case of persons who

16 are not engaged in farming operations, not prevent the

17 Secretary from—

18 ‘‘(A) providing under this Act consultations,

19 technical assistance, and educational and training

20 services and conducting under this Act surveys and

21 studies;

22 ‘‘(B) conducting inspections or investigations in

23 response to employee’s complaints, issuing citations

24 for violations of this Act found during such an in25 spection, and assessing a penalty for violations
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1 which are not corrected within a reasonable abate2 ment period;

3 ‘‘(C) taking any action authorized by this Act

4 with respect to imminent dangers;

5 ‘‘(D) taking any action authorized by this Act

6 with respect to health standards;

7 ‘‘(E) taking any action authorized by this Act

8 with respect to a report of an employment accident

9 which is fatal to at least one employee or which re10 sults in hospitalization of at least 3 employees and

11 taking any action pursuant to an investigation of

12 such report; and

13 ‘‘(F) taking any action authorized by this Act

14 with respect to complaints of discrimination against

15 employees for exercising their rights under this

16 Act.’’.

17 (b) EMPLOYEE NOTICE.—Section 8(f)(1) (29 U.S.C.

18 657(f)(1)) is amended—

19 (1) by striking out ‘‘he shall make’’ and insert20 ing in lieu thereof ‘‘the Secretary may make’’,

21 (2) by striking out ‘‘determines there’’ in the

22 third sentence and inserting in lieu thereof ‘‘deter23 mines that there’’, and

24 (3) by striking out ‘‘he shall notify’’ and insert25 ing in lieu thereof ‘‘or that the facts alleged in the
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1 notification do not justify an exercise of the Sec2 retary’s inspection authority under subsection (a) for

3 any reason consistent with the standard used by the

4 Secretary to choose subjects for inspection under

5 that subsection, the Secretary shall notify’’.

6 SEC. 7. CONSULTATION, VOLUNTARY COMPLIANCE INCEN7 TIVES, AND TECHNICAL ASSISTANCE.

8 (a) PROGRAMS.—The Occupational Safety and

9 Health Act of 1970 is amended by inserting after section

10 8 the following:

11 ‘‘WORKSITE-BASED INCENTIVES

12 ‘‘SEC. 8A.(a) The Secretary of Labor shall establish

13 an office to promote, administer, and coordinate the pro14 grams and activities described in this section.

15 ‘‘(b)(1) The Secretary shall by regulation establish a

16 program to encourage voluntary employer and employee

17 efforts to provide safe and healthful working conditions.

18 ‘‘(2) In establishing a program under paragraph (1),

19 the Secretary shall, in accordance with paragraph (3), pro20 vide an exemption from all safety and health inspections

21 and investigations with respect to a place of employment

22 maintained by an employer, except inspections and inves23 tigations conducted for the purpose of—

24 ‘‘(A) determining the cause of a workplace

25 accident which resulted in the death of one or more
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1 employees or the hospitalization of 3 or more

2 employees,

3 ‘‘(B) responding to a request for an inspection

4 pursuant to paragraph (6)(A), or

5 ‘‘(C) carrying out a special emphasis program

6 under section 12.

7 ‘‘(3) In order to qualify for the exemption provided

8 under paragraph (2), an employer shall provide evidence

9 that—

10 ‘‘(A) the place of employment or conditions of

11 employment have, during the preceding year, been

12 reviewed or inspected under—

13 ‘‘(i) a consultation program provided by re14 cipients of grants under section 7(c)(1) or

15 24(g),

16 ‘‘(ii) a certification or consultation pro17 gram provided by an insurance carrier or other

18 private business entity pursuant to a State pro19 gram, law, or regulation, or

20 ‘‘(iii) a workplace consultation program

21 provided by any other person certified by the

22 Secretary for purposes of providing such con23 sultations and the program under clause (i) or

24 (ii) or this clause includes means of assuring

25 that serious hazards identified in the consulta-
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1 tion are corrected within an appropriate time,

2 or

3 ‘‘(B) the place of employment has an exemplary

4 safety record and the employer maintains a safety

5 and health program for the workplace which in6 cludes—

7 ‘‘(i) procedures for assessing hazards to

8 the employer’s employees which are inherent to

9 the employer’s operations or business;

10 ‘‘(ii) procedures for correcting or control11 ling such hazards in a timely manner based

12 upon the severity of the hazard; and

13 ‘‘(iii) employee participation in the pro14 gram which participation includes at the least—

15 ‘‘(I) regular consultation between the

16 employer and non-supervisory employees

17 regarding safety and health issues;

18 ‘‘(II) assurances that participating

19 non-supervisory employees have training or

20 expertise on safety and health issues con21 sistent with their responsibilities; and

22 ‘‘(III) opportunity for non-supervisory

23 employees to make recommendations re24 garding hazards in the workplace and to

25 receive responses or to implement improve-
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1 ments in response to such recommenda2 tions.

3 ‘‘(4) The Secretary may require that an employer in

4 order to claim the exemption give certification to the Sec5 retary and notice to the employer’s employees of such eli6 gibility.

7 ‘‘(5)(A) The program established under paragraph

8 (1) shall provide that only a penalty assessed under sec9 tion 17(a) shall be reduced by 40 percent in any case in

10 which the employer maintains a written safety and health

11 program for the worksite at which the violation for which

12 the penalty was assessed took place.

13 ‘‘(B) No penalty shall be assessed against an em14 ployer for a violation except where an employer has failed

15 to correct a violation within a reasonable time set for

16 abatement or a violation which creates an imminent dan17 ger or has caused death or a willful violation which has

18 caused serious injury to an employee if the worksite at

19 which the violation occurred has been reviewed or in20 spected under a program described in section 8A(c)(1)

21 during the one year period before the date of the citation

22 for such violation.

23 ‘‘(6) The Secretary shall, within 6 months after the

24 date of the enactment of the Occupational Safety and

25 Health Reform Act, establish a program for the certifi-
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1 cation of safety and health consultants to conduct inspec2 tions under this section.

3 ‘‘(c)(1) The Secretary shall give special recognition

4 to worksites and companies and other organizations which

5 have implemented particularly effective approaches to ad6 dressing occupational safety and health in the workplace,

7 including those which provide for effective employee in8 volvement in improving safety and health, and which are

9 as a consequence deserving of special recognition. Such

10 recognition may include the exemptions from inspections

11 and reductions in penalties described in subsection (b).

12 ‘‘(2) A worksite or company or organization to which

13 an award is made under paragraph (1) and which agrees

14 to help other American companies or organizations im15 prove their occupational safety and health may publicize

16 its receipt of such award and use the award in its advertis17 ing.

18 ‘‘(3)(A) Subject to subparagraph (B), separate cri19 teria for recognition shall be used for qualifying organiza20 tions and companies in each of the following categories:

21 ‘‘(i) Small businesses.

22 ‘‘(ii) Other companies or their subsidiaries.

23 ‘‘(iii) Companies which primarily perform con24 struction work.
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1 ‘‘(B) The Secretary may at any time expand, sub2 divide, or otherwise modify the list of categories within

3 which awards may be made as initially in effect under sub4 paragraph (A) and may establish separate awards for

5 other organizations and companies including units of gov6 ernment.

7 ‘‘(4) An organization or company may qualify for an

8 award under paragraph (1) only if it—

9 ‘‘(A) applies to the Secretary in writing, for the

10 award,

11 ‘‘(B) permits a rigorous evaluation of its occu12 pational safety and health operations, and

13 ‘‘(C) meets such requirements and specifica14 tions as the Secretary determines to be appropriate

15 to achieve the objectives of this subsection.

16 In applying subparagraph (C) with respect to any organi17 zation or company, the Secretary shall rely upon an inten18 sive evaluation of the occupational safety and health oper19 ation. The examination should encompass all aspects of

20 the organization’s or company’s current occupational safe21 ty and health practice. The award shall be given only to

22 organizations and companies which have demonstrated

23 outstanding performance in their occupational safety and

24 health practices and which demonstrate effective occupa-
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1 tional safety and health practices through the training and

2 involvement of all levels of personnel.

3 ‘‘(5) The Secretary shall ensure that all program par4 ticipants receive the complete results of their audits as

5 well as detailed explanations of all suggestions for im6 provements. The Secretary shall also provide information

7 about the awards and the successful quality improvement

8 strategies and programs of the award-winning participants

9 to all participants and other appropriate groups.

10 ‘‘(6) The Secretary is authorized to seek and accept

11 gifts, including in kind assistance, from public and private

12 sources to carry out the program under this subsection.

13 ‘‘(7) The Secretary shall prepare and submit to the

14 President and the Congress, within 3 years after the date

15 of the enactment of this section, a report on the progress,

16 findings, and conclusions of activities conducted pursuant

17 to this subsection along with recommendations for possible

18 modifications thereof.

19 ‘‘(d) This subsection authorizes the consultative serv20 ices to employers provided under cooperative agreements

21 between the States and the Occupational Safety and

22 Health Administration and described in part 1908 of title

23 39 of the Code of Federal Regulations.

24 ‘‘(e) In addition to the other programs in this section,

25 the Secretary shall establish programs to provide edu-
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1 cation, training, and technical assistance to employers and

2 employees to assist them in the provision of safe and

3 healthful workplaces and compliance with the require4 ments of this Act.

5 ‘‘(f) Not less than one-fourth of the annual appro6 priation made to the Secretary to carry out this Act shall

7 be expended to carry out this section.’’.

8 (b) DEFINITION.—Section 3 (29 U.S.C. 652) is

9 amended by adding at the end the following:

10 ‘‘(15) The term ‘exemplary safety record’

11 means such record as the Secretary shall annually

12 determine for each industry. Such record shall in13 clude employers which have had, in the most recent

14 reporting period, no employee death caused by occu15 pational injury and fewer lost workdays due to occu16 pational injury and illness than the average for the

17 industry of which the employer is a part.’’.

18 SEC. 8. EMPLOYER DEFENSES.

19 Section 9 (29 U.S.C. 658) is amended by adding at

20 the end the following:

21 ‘‘(d) No citation may be issued under subsection (a)

22 to an employer unless the employer knew or with the exer23 cise of reasonable diligence would have known of the pres24 ence of the alleged violation. No citation shall be issued

25 under subsection (a) to an employer for an alleged viola-
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1 tion of section 5, any standard, rule, or order promulgated

2 pursuant to section 6, any other regulation promulgated

3 under this Act, or any other occupational safety and

4 health standard if such employer demonstrates that—

5 ‘‘(1) employees of such employer have been pro6 vided with the proper training and equipment to pre7 vent such a violation;

8 ‘‘(2) work rules designed to prevent such a vio9 lation have been established and adequately commu10 nicated to employees by such employer and the em11 ployer has taken reasonable measures to discipline

12 employees when violations of such work rules have

13 been discovered;

14 ‘‘(3) the failure of employees to observe work

15 rules led to the violation; and

16 ‘‘(4) reasonable steps have been taken by such

17 employer to discover any such violation.

18 ‘‘(e) A citation issued under subsection (a) to an em19 ployer who violates the requirements of any standard, rule,

20 or order promulgated pursuant to section 6 or any other

21 regulation promulgated under this Act shall be vacated if

22 such employer demonstrates that employees of such em23 ployer were protected by alternative methods equally or

24 more protective of the employee’s safety and health than
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1 those required by such standard, rule, order, or regulation

2 in the factual circumstances underlying the citation.

3 ‘‘(f) Subsections (d) and (e) shall not be construed

4 to eliminate or modify other defenses which may exist to

5 any citation.’’.

6 SEC. 9. THE OCCUPATIONAL SAFETY AND HEALTH REVIEW

7 COMMISSION.

8 (a) SECTION 10.—Section 10(c) (29 U.S.C 659(c))

9 is amended—

10 (1) in the first sentence, by striking out ‘‘fifteen

11 working days’’ and inserting in lieu thereof ‘‘30

12 working days’’, and

13 (2) by striking out the second sentence and in14 serting in lieu thereof the following: ‘‘The Commis15 sion shall issue an order, based on de novo findings

16 of fact and de novo conclusions of law, affirming,

17 modifying, or vacating the Secretary’s citation or

18 proposed penalty or directing other appropriate re19 lief. Such order shall become final 30 days after it

20 is issued.’’.

21 (b) SECTION 11.—Section 11(a) (29 U.S.C 660(a) is

22 amended by inserting after ‘‘conclusive’’ at the end of the

23 sixth sentence the following: ‘‘and the Commission’s con24 clusions with respect to questions of law shall be given

25 deference if reasonable’’.
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1 SEC. 10. DISCRIMINATION.

2 Section 11(c) (29 U.S.C. 660(c)) is amended by strik3 ing out paragraphs (2) and (3) and inserting in lieu there4 of the following:

5 ‘‘(2) Any employee who believes that the employee

6 has been discharged or otherwise discriminated against by

7 any person in violation of paragraph (1) or who believes

8 that the employee has been discharged or discriminated

9 against because of an action taken by the employee under

10 section 8(f), may, within 60 days after such violation oc11 curs, file a complaint with the Secretary alleging such dis12 crimination. Upon receipt of such a complaint the Sec13 retary shall notify the person named in the complaint and

14 begin an investigation to determine if the Secretary

15 should, on behalf of such employee, request the Commis16 sion to take action on the basis of such complaint. The

17 Secretary shall make such determination within 90 days

18 of the filing of such complaint.

19 ‘‘(3) If within such 90 days, the Secretary does not

20 file a complaint on behalf of the complainant with the

21 Commission, such employee may file such complaint with

22 the Commission. If such a complaint is filed with the Com23 mission, the Commission shall provide opportunity for a

24 hearing (in accordance with section 554 of title 5, United

25 States Code, but without regard to subsection (a)(3) of

26 such section), and issue an order, based upon findings of
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1 fact and conclusions of law. In such an order, the Commis2 sion may require a person charged with committing a vio3 lation of paragraph (1) to take appropriate affirmative ac4 tion, including rehiring or reinstatement of the employee

5 to the employee’s former position with back pay and inter6 est. Upon completion of a proceeding on such order, the

7 Commission may award the prevailing party a reasonable

8 attorney’s fee. Final orders of the Commission may be ap9 pealed as provided in subsection (a).

10 ‘‘(4)(A) Anytime after a complaint has been filed with

11 the Secretary alleging a violation of paragraph (1), the

12 complaining employee, the person charged with commit13 ting the violation (referred to in this paragraph as the ‘re14 spondent’), or the Secretary have the right to request that

15 the complaint be referred to the Federal Mediation and

16 Conciliation Service (referred to in this paragraph as the

17 ‘Service’) for mediation of the dispute. In lieu of receiving

18 mediation services from the Service, the parties may upon

19 mutual agreement refer the complaint to a mediator other

20 than one provided by the Service.

21 ‘‘(B) During mediation, the respondent and the com22 plaining party may be represented by legal counsel or

23 other representative of their choice.

24 ‘‘(C)(i) All contested proceedings shall be stayed dur25 ing the time for mediation and neither the Secretary or
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1 the complaining party shall file a complaint pending com2 pletion of the mediation.

3 ‘‘(ii) The mediator shall have 60 days from the time

4 of the referral to mediate the dispute to complete the me5 diation. If the complaint has not been resolved within such

6 60-day period or such extension as may be agreed upon,

7 the mediation shall be deemed to be completed. The par8 ties may extend the mediation for an additional 60 days

9 by mutual agreement.

10 ‘‘(iii) The complaint shall be resolved through medi11 ation in a manner that is mutually agreeable to the par12 ties. Such resolution shall be binding upon the parties and

13 shall preclude resort to other legal proceedings except as

14 provided in subparagraph (E).

15 ‘‘(D)(i) Any agreement shall be kept confidential by

16 the parties to the mediation unless all parties to the medi17 ation agree otherwise in writing.

18 ‘‘(ii) All communications, oral or written, made in

19 connection with the mediation (including memoranda,

20 work product, transcripts, notes, or other materials) shall

21 be kept confidential by the participants to the mediation.

22 ‘‘(iii) The material referred to in clause (ii) shall not

23 be subject to disclosure through discovery or compulsory

24 process and shall not be used as evidence in any investiga25 tory, arbitral, judicial, administrative, or other proceeding.
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1 ‘‘(E) A party to an agreement made pursuant to me2 diation under this paragraph may bring an action to en3 force the agreement in any Federal or State court of com4 petent jurisdiction.

5 ‘‘(F) Except as provided in subparagraph (C)(iii),

6 nothing in this paragraph shall be interpreted to effect or

7 modify whatever rights and obligations the parties may

8 have under arbitration agreements or other form of alter9 native dispute resolution mechanisms.’’.

10 SEC. 11. ENFORCEMENT.

11 (a) SPECIAL CONDITIONS AND PRACTICES.—Section

12 13 (29 U.S.C. 662) is amended by striking out subsection

13 (c), by redesignating subsections (a) and (b) as sub14 sections (b) and (c), respectively, and by inserting before

15 subsection (b) (as so redesignated) the following:

16 ‘‘(a)(1) If the Secretary determines, on the basis of

17 an inspection or investigation under this section, that a

18 condition or practice in a place of employment is such that

19 an imminent danger to safety or health exists that could

20 reasonably be expected to cause death or serious physical

21 harm or permanent impairment of the health or functional

22 capacity of employees if not corrected immediately or be23 fore the imminence of such danger can be eliminated

24 through the enforcement procedures otherwise provided by

25 this Act, the Secretary may so inform the employer and
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1 provide notice to the affected employees and shall request

2 that the condition or practice be corrected immediately or

3 that employees be immediately removed from exposure to

4 such danger. The notice shall be removed by the Secretary

5 from the place of employment not later than 72 hours

6 after the notice was first posted unless a court in an action

7 brought under subsection (c) requires that the notice be

8 maintained. The Secretary shall not prevent the continued

9 activity of employees whose presence is necessary to avoid,

10 correct, or remove such imminent danger or to maintain

11 the capacity of a continuous process operation to resume

12 normal operations without a cessation of operations or

13 where cessation of operations is necessary, to permit such

14 to be accomplished in a safe and orderly way.

15 ‘‘(2) No person shall discharge or in any manner dis16 criminate against any employee because such employee

17 has refused to perform a duty that has been identified as

18 the source of an imminent danger by a notice posted pur19 suant to paragraph (1).’’.

20 (b) MANDATORY SPECIAL EMPHASIS.—Section 8 (29

21 U.S.C. 657), as amended by section 6, is amended by add22 ing at the end the following:

23 ‘‘(j)(1) The Secretary shall establish and carry out

24 a special emphasis program for identifying and correcting
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1 existing or newly recognized hazards in selected industries

2 and operations and high hazard industries and operations.

3 ‘‘(2) Each special emphasis program under para4 graph (1) shall consist of a planned and coordinated ef5 fort, including outreach, education and training programs,

6 and inspections. Before beginning any such program, the

7 Secretary shall meet and discuss with representatives of

8 employers and employees in the industries affected by

9 such program the intended goals and benefits of such pro10 gram, the number of inspections under such program, and

11 the nature of other activities planned. To the extent prac12 ticable, the Secretary shall coordinate efforts with such

13 representatives. Each such program shall have a date of

14 termination and shall include methods of evaluating the

15 effectiveness of the program in reducing illness and injury

16 in the targeted industries or operations.’’.

17 (c) INVESTIGATIONS OF DEATHS AND SERIOUS INCI18 DENTS.—Section 8 (29 U.S.C. 657), as amended by sub19 section (b), is amended by adding at the end the following:

20 ‘‘(k)(1) The Secretary shall investigate any work-re21 lated death or serious incident.

22 ‘‘(2) If a death or serious incident occurs in a place

23 of employment covered by this Act, the employer shall no24 tify the Secretary of the death or serious incident.
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1 ‘‘(3) As used in this subsection, the term ‘serious in2 cident’ means an incident that results in the hospitaliza3 tion of 3 or more employees. The Secretary shall by regu4 lation define ‘hospitalization’.’’.

5 SEC. 12. PENALTIES.

6 (a) IN GENERAL.—Section 17 (29 U.S.C. 666) is

7 amended by striking out subsections (a), (b), (c), (j), and

8 (k), by redesignating subsections (d), (e), (f), (g), (h), (i),

9 and (l) as subsections (b), (c), (d), (e), (f), (g), and (h),

10 and by inserting after ‘‘17.’’ the following:

11 ‘‘(a) Any employer who violates the requirements of

12 section 5, any standard, rule, or order promulgated pursu13 ant to section 6, or any other regulation promulgated

14 under this Act may be assessed a civil penalty of not more

15 than $7,000. The Commission shall have authority to as16 sess all civil penalties provided in this section, giving due

17 consideration to the appropriateness of the penalty with

18 respect to—

19 ‘‘(1) the size of the employer,

20 ‘‘(2) the number of employees exposed to the

21 violation,

22 ‘‘(3) the likely severity of any injuries directly

23 resulting from such violation,

24 ‘‘(4) the probability that the violation could re25 sult in injury or illness,
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1 ‘‘(5) the employer’s good faith in correcting the

2 violation after it has been identified,

3 ‘‘(6) the extent to which employee misconduct

4 was responsible for the violation, and

5 ‘‘(7) the effect of the penalty on the employer’s

6 ability to stay in business.’’.

7 (b) SPECIAL ASSESSMENTS.—Section 17 (29 U.S.C.

8 666), as amended by subsection (a), is amended by adding

9 at the end the following:

10 ‘‘(i) The Secretary shall, by regulation, prescribe pro11 cedures for determining that conditions surrounding a vio12 lation warrant a special assessment. Such regulation shall

13 provide that all findings shall be in narrative form and

14 provide for individual review of violations for special as15 sessment in the following circumstances:

16 ‘‘(1) Violations causing fatalities.

17 ‘‘(2) An excessive history of serious injuries to

18 employees or a pattern of violations of this Act

19 which cause or are likely to cause death or serious

20 physical injury to employees.

21 When the Secretary determines that a special assessment

22 is appropriate, the Secretary may apply an appropriate

23 multiplier, based on the factors listed in subsection (a),

24 of not greater than 10 to the penalty determined under

25 subsection (a). In addition to any fines assessed with re-
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1 spect to the violations described in paragraphs (1) and (2),

2 the Secretary may require the employer involved to estab3 lish a comprehensive safety and health program for the

4 worksite at which the violations occurred and provide reg5 ular certification to the Secretary that such employer is

6 in compliance with such program.’’.

7 (c) PENALTIES.—

8 (1) CITATIONS.—Section 17 (29 U.S.C. 666),

9 as amended by subsection (b), is amended by adding

10 at the end the following:

11 ‘‘(j) Nothing in this Act shall be construed as requir12 ing the Secretary to issue a citation for violations of this

13 Act if the Secretary believes that the public interest will

14 be adequately served by a suitable written notice or warn15 ing.’’.

16 (2) KNOWING VIOLATION.—Subsection (c) of

17 section 17 (29 U.S.C. 666), as amended by sub18 section (a), is amended to read as follows:

19 ‘‘(c) If any employer who knowingly violates any

20 standard, rule, or order promulgated pursuant to section

21 6 or any regulation prescribed pursuant to this Act and

22 if such violation caused death to any employee, such em23 ployer, if such employer knew such violation would place

24 an employee in imminent danger of death and the employ25 er’s conduct in the circumstances manifests an extreme
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1 indifference or reckless disregard of human life, shall upon

2 conviction be punished by a fine in accordance with section

3 3571 of title 18, United States Code, or by imprisonment

4 of not more than 3 years, or both. If the conviction is

5 for a violation committed after a first conviction under

6 this subsection of such person, imprisonment shall be for

7 not more than 6 years.’’.

8 (d) VICTIM’S RIGHTS.—Section 10 (29 U.S.C. 659)

9 is amended by adding at the end the following:

10 ‘‘(d)(1) The Secretary shall provide any individual

11 who is a victim of a violation of this Act with—

12 ‘‘(A) access to information respecting any inves13 tigation of the Secretary or hearing by the Commis14 sion of such violation, to citations issued for such

15 violation, to penalties imposed under this section for

16 such violation, and to settlements made respecting

17 such violation, and

18 ‘‘(B) an opportunity to meet with the Secretary

19 or a representative of the Secretary respecting such

20 violation.

21 ‘‘(2) For purposes of paragraph (1), the term ‘victim’

22 means—

23 ‘‘(A) an employee who has sustained a work-re24 lated injury or illness which is the subject of an in-
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1 spection or investigation conducted under section 8,

2 or

3 ‘‘(B) a family member of an employee described

4 in subparagraph (A) who is killed as a result of such

5 injury or illness.’’.

6 SEC. 13. STATE PROGRAMS.

7 Section 18(c) (29 U.S.C. 667(c)) is amended—

8 (1) in paragraph (2), by striking out ‘‘and

9 which’’ and inserting in lieu thereof ‘‘which’’ and by

10 inserting after the comma at the end the following:

11 ‘‘and which standards when applicable to the label12 ing, content, and hazard information for such prod13 ucts are identical to any requirement under a stand14 ard promulgated under section 6,’’,

15 (2) in paragraph (4), by inserting before the

16 comma the following: ‘‘at least as effective as en17 forcement by the Secretary’’, and

18 (3) by adding after and below paragraph (8)

19 the following: ‘‘The Secretary may waive any of the

20 requirements of this subsection (other than the re21 quirements of paragraphs (2) and (6)) upon a re22 quest of a State seeking approval of a plan or an

23 amendment to an approved plan. Such a waiver shall

24 not extend for more than 3 years but may be re25 newed if the Secretary determines that the rate of
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1 occupational fatalaties, injuries, and illnesses has

2 declined in such State during the period of the

3 waiver.’’.

4 SEC. 14. NIOSH.

5 The Occupational Safety and Health Act (as amend6 ed by section 2) is amended by repealing section 23 (29

7 U.S.C. 671) and the functions and authorities provided

8 to the National Institute of Occupational Safety and

9 Health under section 22 are transferred to the Secretary

10 of Labor. The responsibilities and authorities of the Sec11 retary of Health and Human Services under sections 21,

12 22, and 23 are transferred to the Secretary of Labor. The

13 Secretary of Labor shall take such actions as are nec14 essary to avoid duplication of programs and to maximize

15 training, education, and research under the Occupational

16 Safety and Health Act of 1970.

17 SEC. 15. PREVENTION OF ALCOHOL AND SUBSTANCE

18 ABUSE.

19 The Occupational Safety and Health Act of 1970 (as

20 amended by section 2) is amended by repealing sections

21 29 through 32, by redesignating sections 33, 34, and 35

22 as sections 30, 31, and 32, respectively, and by inserting

23 after section 28 (29 U.S.C. 676) the following:

24 ‘‘ALCOHOL AND SUBSTANCE ABUSE TESTING

25 ‘‘SEC. 29. (a) Whenever there exists the reasonable

26 probability that the safety or health of any employee could
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1 be endangered because of the use of alcohol or a controlled

2 substance in the workplace, the employer of such employee

3 may establish and implement an alcohol and substance

4 abuse testing program in accordance with subsection (b).

5 ‘‘(b) The Secretary shall establish standards under

6 section 6 for substance abuse and alcohol testing programs

7 established under subsection (a) as follows:

8 ‘‘(1) The substance abuse testing program shall

9 conform, to the maximum extent practicable, to sub10 part B of the mandatory guidelines for Federal

11 workplace drug testing programs published on April

12 11, 1988, by the Secretary of Health and Human

13 Services at 53 Federal Register 11979 and any

14 amendments adopted to such guidelines.

15 ‘‘(2) The alcohol testing program shall take the

16 form of alcohol breath analysis and shall conform, to

17 the maximum extent practicable, to any guidelines

18 developed by the Secretary of Transportation for al19 cohol testing of mass transit employees under the

20 Department of Transportation and Related Agencies

21 Appropriations Act, 1992.

22 ‘‘(c) This section shall not be construed to prohibit

23 an employer from requiring an employee to submit to and

24 pass an alcohol or substance abuse test before employment

25 by the employer or—
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1 ‘‘(1) on a for cause basis or where the employer

2 has reasonable suspicion to believe that such em3 ployee is using or is under the influence of alcohol

4 or a controlled substance,

5 ‘‘(2) where such test is administered as part of

6 a scheduled medical examination,

7 ‘‘(3) in the case of an accident or incident in8 volving the actual or potential loss of human life,

9 bodily injury, or property damage,

10 ‘‘(4) during and for a reasonable period of time

11 (not to exceed 5 years) after the conclusion of an al12 cohol or substance abuse treatment program, or

13 ‘‘(5) on a random selection basis in work units,

14 locations, or facilities where alcohol and substance

15 abuse has been identified as a problem or as part of

16 a universal testing program.’’.

17 SEC. 16. COST EFFECTIVENESS STUDIES.

18 (a) STUDIES.—The Secretary of Labor shall contract

19 with a qualified organization or agency to conduct studies

20 of the effect of standards promulgated under section 6.

21 Each study shall assess the costs of implementation of the

22 standard, both in the first year and on an annual basis,

23 on employers and the effectiveness of the standard in re24 ducing injuries and illnesses. Standards shall be
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1 prioritized for study according to their estimated cost of

2 compliance at the time of promulgation.

3 (b) AUTHORIZATION OF APPROPRIATIONS.—There

4 are authorized to be appropriated $2,000,000 for each of

5 the fiscal years 1995, 1996, 1997, 1998, and 1999 for

6 carrying out the studies described in subsection (a).

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