II

104TH CONGRESS

1ST SESSION S. 592

To amend the Occupational Safety and Health Act of 1970 and the National

Labor Relations Act to modify certain provisions, to transfer certain

occupational safety and health functions to the Secretary of Labor,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 22 (legislative day, MARCH 16), 1995

Mrs. HUTCHISON introduced the following bill; which was read twice and

referred to the Committee on Labor and Human Resources

A BILL

To amend the Occupational Safety and Health Act of 1970

and the National Labor Relations Act to modify certain

provisions, to transfer certain occupational safety and

health functions to the Secretary of Labor, and for other

purposes.

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; REFERENCE.

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

5 ‘‘Occupational Safety and Health Reform Act of 1995’’.

6 (b) REFERENCE.—Whenever in this Act an amend7 ment or repeal is expressed in terms of an amendment
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1 to, or repeal of, a section or other provision, the reference

2 shall be considered to be made to a section or other provi3 sion of the Occupational Safety and Health Act of 1970

4 (29 U.S.C. 651 et seq.).

5 SEC. 2. USE OF OSHA IN PRIVATE LITIGATION.

6 Section 4(b)(4) (29 U.S.C. 653(b)(4)) is amended by

7 adding before the period the following: ‘‘, except that an

8 allegation of a violation, a finding of a violation, or an

9 abatement of an alleged violation, under this Act or the

10 standards promulgated under this Act shall not be admis11 sible as evidence in any civil action or used to increase

12 the amount of payments received under any workmen’s

13 compensation law for any work-related injury’’.

14 SEC. 3. D UTIES OF EMPLOYERS AND EMPLOYEES.

15 Section 5 (29 U.S.C. 654) is amended by adding at

16 the end the following new subsection:

17 ‘‘(c) On multi-employer work sites, an employer may

18 not be cited for a violation of this section if the employer—

19 ‘‘(1) has not created the condition that caused

20 the violation; or

21 ‘‘(2) has no employees exposed to the violation

22 and has not assumed responsibility for ensuring

23 compliance by other employers on the work site.’’.
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1 SEC. 4. STANDARD SETTING.

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

3 655(b)(5)) is amended to read as follows:

4 ‘‘(5) The development of standards under this

5 section shall be based on the latest scientific data in

6 the field and on research demonstrations, experi7 ments, and other information that may be appro8 priate. In establishing the standards, the Secretary

9 shall consider, and make findings, based on the fol10 lowing factors:

11 ‘‘(A) The standard shall be needed to ad12 dress a significant risk of material impairment

13 to workers and shall substantially reduce that

14 risk.

15 ‘‘(B) The standard shall be technologically

16 and economically feasible.

17 ‘‘(C) There shall be a reasonable relation18 ship between the costs and benefits of the

19 standard.

20 ‘‘(D) The standard shall provide protection

21 to workers in the most cost-effective manner

22 and minimize employment loss due to the

23 standard in the affected industries and sectors

24 of industries.
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1 ‘‘(E) Whenever practicable, the standard

2 shall be expressed in terms of objective criteria

3 and of the performance desired.’’.

4 (b) VARIANCES.—Section 6(d) (29 U.S.C. 655(d)) is

5 amended by adding at the end the following new sen6 tences: ‘‘No citation shall be issued for a violation of an

7 occupational safety and health standard that is the subject

8 of a good faith application for a variance during the period

9 the application is pending before the Secretary.’’.

10 (c) STANDARD PRIORITIES.—The second sentence of

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

12 follows: ‘‘In determining the priority for establishing

13 standards dealing with toxic materials or the physical

14 agents of toxic materials, the Secretary shall consider the

15 number of workers exposed to the substance, the nature

16 and severity of potential impairment, and the likelihood

17 of such impairment based on information obtained by the

18 Secretary from the Environmental Protection Agency, the

19 Department of Health and Human Services, and other ap20 propriate sources.’’.

21 (d) REGULATORY FLEXIBILITY ANALYSIS.—Section

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

23 following new subsections:

24 ‘‘(h) In promulgating an 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. 5. INSPECTIONS.

12 (a) AUTHORITY OF SECRETARY.—Section 8(a)(2)

13 (29 U.S.C. 657(a)(2)) is amended to read as follows:

14 ‘‘(2) to inspect and investigate during regular

15 working hours and at other reasonable times, and

16 within reasonable limits and in a reasonable manner,

17 any such place of employment and all pertinent con18 ditions, structures, machines, apparatus, devices,

19 equipment, and materials in such place of employ20 ment.

21 In conducting inspections and investigations under para22 graph (2), the Secretary may question any such employer,

23 owner, operator, agent or employee. Interviews of employ24 ees may be in private if the employee so requests.’’.

25 (b) RECORDKEEPING.—
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1 (1) GENERAL MAINTENANCE.—The first sen2 tence of section 8(c)(1) (29 U.S.C. 657(c)(i)) is

3 amended to read as follows: ‘‘Each employer shall

4 make, keep and preserve, and make available upon

5 reasonable request and within reasonable limits to

6 the Secretary or the Secretary of Health and

7 Human Services, such records regarding the activi8 ties of the employer relating to this Act as the Sec9 retary, in cooperation with the Secretary of Health

10 and Human Services, may prescribe by regulation as

11 necessary or appropriate for the enforcement of this

12 Act or for developing information regarding the

13 causes and prevention of occupational accidents and

14 illnesses.’’.

15 (2) RECORDS OR REPORTS ON INJURIES.—Sec16 tion 8(c) (29 U.S.C. 657(c)) is amended by adding

17 at the end the following new paragraphs:

18 ‘‘(4) In prescribing regulations under this subsection,

19 the Secretary may not require employers to maintain

20 records of, or to make reports on, injuries that do not in21 volve lost work time or that involve employees of other

22 employers.

23 ‘‘(5) In prescribing regulations requiring employers

24 to report work-related deaths and multiple hospitaliza25 tions, the Secretary shall include provisions that provide
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1 an employer at least 24 hours in which to make such re2 port.’’.

3 (c) INSPECTIONS BASED ON EMPLOYEE COM4 PLAINTS.—Section 8(f) (29 U.S.C. 657(f)) is amended to

5 read as follows:

6 ‘‘(f)(1)(A) An employee or representative of an em7 ployee who believes that a violation of a safety or health

8 standard exists that threatens physical harm, or that an

9 imminent danger exists, may request an inspection by giv10 ing notice to the Secretary or an authorized representative

11 of the Secretary of such violation or danger.

12 ‘‘(B) Notice under subparagraph (A) shall be reduced

13 to writing, shall set forth with reasonable particularity the

14 grounds for the notice, and shall state that the alleged

15 violation or danger has been brought to the attention of

16 the employer and the employer has refused to take any

17 action to correct the alleged violation or danger.

18 ‘‘(C)(i) The notice under subparagraph (A) shall be

19 signed by the employees or representative of employees

20 and a copy shall be provided to the employer or the agent

21 of the employer no later than the time of arrival of an

22 occupational safety and health agency inspector to conduct

23 the inspection.

24 ‘‘(ii) Upon the request of the person giving the notice

25 under subparagraph (A), the name of the person and the
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1 names of individual employees referred to in the notice

2 shall not appear in the copy or on any record published,

3 released, or made available pursuant to subsection (i), ex4 cept that the Secretary may disclose this information dur5 ing prehearing discovery in a contested case.

6 ‘‘(D) The Secretary may not make an inspection

7 under this section except on request by an employee or

8 representative of employees.

9 ‘‘(E) If upon receipt of the notice under subpara10 graph (A), the Secretary determines that the employee or

11 employee representative has brought the alleged violation

12 or danger to the attention of the employer and the em13 ployer has refused to take corrective action, and there are

14 reasonable grounds to believe such violation or danger still

15 exists, the Secretary shall make a special inspection in ac16 cordance with this section as soon as possible. The special

17 inspection shall be conducted for the limited purpose of

18 determining whether such violation or danger exists.

19 ‘‘(2) If the Secretary determines either before, or as

20 a result of, an inspection that there are not reasonable

21 grounds to believe a violation or danger exists, the Sec22 retary shall notify the complaining employee or employee

23 representative of the determination and, upon request by

24 the employee or employee representative, shall provide a
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1 written statement of the reasons for the Secretary’s final

2 disposition of the case.’’.

3 (d) TRAINING AND ENFORCEMENT.—Section 8 (29

4 U.S.C. 657) is amended—

5 (1) by redesignating subsection (g) as sub6 section (i); and

7 (2) by inserting after subsection (f) the follow8 ing new subsections:

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

10 be conducted by at least one person who has training in,

11 and is knowledgeable of, the industry or types of hazards

12 being inspected.

13 ‘‘(h)(1) Except as provided in paragraph (2), the Sec14 retary shall not conduct routine inspections of, or enforce

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

16 with respect to—

17 ‘‘(A) an employer who is engaged in a farming

18 operation that does not maintain a temporary labor

19 camp and employs 100 or fewer employees; or

20 ‘‘(B) an employer of not more than 100 employ21 ees if the employer is included within a category of

22 employers having an occupational injury or a lost

23 workday case rate (determined under the Standard

24 Industrial Classification Code for which such data

25 are published) which is less than the national aver-
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1 age rate as most recently published by the Secretary

2 acting through the Bureau of Labor Statistics under

3 section 24.

4 ‘‘(2) In the case of an employer described in subpara5 graph (B) of paragraph (1), such paragraph shall not be

6 construed to prohibit the Secretary from—

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

8 technical assistance, and educational and training

9 services;

10 ‘‘(B) conducting under this Act surveys and

11 studies;

12 ‘‘(C) conducting inspections or investigations in

13 response to employee complaints, issuing citations

14 for violations of this Act found during an inspection,

15 and assessing a penalty for violations that are not

16 corrected within a reasonable abatement period;

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

18 with respect to imminent dangers;

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

20 with respect to health standards;

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

22 with respect to a report of an employment accident

23 that is fatal to at least one employee or that results

24 in hospitalization of at least three employees and
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1 taking any action pursuant to an investigation of

2 such report; and

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

4 with respect to complaint of discrimination against

5 employees for exercising their rights under this

6 Act.’’.

7 SEC. 6. VOLUNTARY COMPLIANCE.

8 (a) PROGRAM.—The Occupational Safety and Health

9 Act of 1970 (21 U.S.C. 651 et seq.) is amended by insert10 ing after section 8 the following new section:

11 ‘‘SEC. 8A. VOLUNTARY COMPLIANCE.

12 ‘‘(a) IN GENERAL.—The Secretary shall by regula13 tion establish a program to encourage voluntary employer

14 and employee efforts to provide safe and healthful working

15 conditions.

16 ‘‘(b) EXEMPTION.—In establishing a program under

17 subsection (a), the Secretary shall, in accordance with sub18 section (c), provide an exemption from all safety and

19 health inspections and investigations with respect to a

20 place of employment maintained by an employer, except

21 inspections and investigations conducted for the purpose

22 of—

23 ‘‘(1) determining the cause of a workplace acci24 dent that resulted in the death of one or more em-
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1 ployees or the hospitalization of three or more

2 employees; or

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

4 pursuant to subsection (f)(1).

5 ‘‘(c) REQUIREMENTS FOR EXEMPTION.—In order to

6 qualify for the exemption provided under subsection (b),

7 an employer shall provide to the Secretary evidence that—

8 ‘‘(1) the place of employment or conditions of

9 employment have, during the preceding year, been

10 reviewed or inspected under—

11 ‘‘(A) a consultation program provided by

12 any State agency relating to occupational safety

13 and health;

14 ‘‘(B) a certification or consultation pro15 gram provided by an insurance carrier or other

16 private business entity pursuant to a State pro17 gram, law, or regulation; or

18 ‘‘(C) a workplace consultation program

19 provided by any other person certified by the

20 Secretary for purposes of providing such con21 sultations; or

22 ‘‘(2) the place of employment has an exemplary

23 safety record and the employer maintains a safety

24 and health program for the workplace that—

25 ‘‘(A) includes—
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1 ‘‘(i) procedures for assessing hazards

2 to the employees of the employer that are

3 inherent to the operations or business of

4 the employer;

5 ‘‘(ii) procedures for correcting or con6 trolling the hazards in a timely manner

7 based on the severity of the hazard; and

8 ‘‘(iii) employee participation in the

9 program including, at a minimum—

10 ‘‘(I) regular consultation between

11 the employer and nonsupervisory em12 ployees regarding safety and health is13 sues; and

14 ‘‘(II) opportunity for non15 supervisory employees to make rec16 ommendations regarding hazards in

17 the workplace and to receive responses

18 or to implement improvements in re19 sponse to such recommendations; and

20 ‘‘(B) provides assurances that participating

21 nonsupervisory employees have training or ex22 pertise on safety and health issues consistent

23 with the responsibilities of the employees.

24 A program under subparagraph (A) or (B) of paragraph

25 (1) shall include methods that ensure that serious hazards
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1 identified in the consultation are corrected within an ap2 propriate time.

3 ‘‘(d) CERTIFICATION.—The Secretary may require

4 that an employer in order to claim the exemption under

5 subsection (b) give certification to the Secretary and no6 tice to the employees of the employer of the eligibility of

7 the employer for an exemption.’’.

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

9 amended by adding at the end the following new para10 graph:

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

12 means that an employer has had, in the most recent

13 annual reporting of the employer required by the Oc14 cupational Safety and Health Administration, no

15 employee death caused by occupational injury and

16 fewer lost workdays due to occupational injury and

17 illness than the average for the industry of which

18 the employer is a part.’’.

19 SEC. 7. EMPLOYER DEFENSES.

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

21 the end the following new subsections:

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

23 to an employer unless the employer knew or with the exer24 cise of reasonable diligence would have known of the pres25 ence of the alleged violation. No citation shall be issued
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1 under subsection (a) to an employer for an alleged viola2 tion of section 5, any standard, rule, or order promulgated

3 pursuant to section 6, any other regulation promulgated

4 under this Act, or any other occupational safety and

5 health standard, if such employer demonstrates that—

6 ‘‘(1) employees of such employer have been pro7 vided with the proper training and equipment to pre8 vent such a violation;

9 ‘‘(2) work rules designed to prevent such a vio10 lation have been established and adequately commu11 nicated to employees by such employer; and

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

13 rules led to the violation.

14 ‘‘(e) A citation issued under subsection (a) to an em15 ployer that violates the requirements of any standard,

16 rule, or order promulgated pursuant to section 6 or any

17 other regulation promulgated under this Act shall be va18 cated if such employer demonstrates that employees of

19 such employer were protected by alternative methods

20 equally or more protective of the safety and health of the

21 employee than the methods required by such standard,

22 rule, order, or regulation in the factual circumstances un23 derlying the citation.
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1 ‘‘(f) Subsections (d) and (e) shall not be construed

2 to eliminate or modify other defenses that may exist to

3 any citation.’’.

4 SEC. 8. THE OCCUPATIONAL SAFETY AND HEALTH REVIEW

5 COMMISSION.

6 (a) PROCEDURE FOR ENFORCEMENT.—

7 (1) NOTIFICATION.—The first sentence of sec8 tion 10(b) (29 U.S.C. 659(b)) is amended to read as

9 follows: ‘‘If the Secretary has reason to believe an

10 employer has failed to correct a violation for which

11 a citation has been issued within the period per12 mitted for the correction of such violation, the Sec13 retary shall notify the employer by certified mail of

14 such failure and of the penalty proposed to be as15 sessed under section 17 by reason of such failure,

16 and that the employer has 15 working days within

17 which to notify the Secretary that the employer de18 sires to contest the notification of the Secretary or

19 the proposed assessment of penalty. The period de20 scribed in the first sentence shall not begin to run

21 until the time for contestation has expired or the

22 entry of a final order by the Commission in a con23 tested case initiated by the employer in good faith

24 and not solely for delay or avoidance of penalties.’’.
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1 (2) BURDEN OF PROOF.—Section 10 (29

2 U.S.C. 659) is further amended by adding at the

3 end the following new subsection:

4 ‘‘(d) In all hearings before the Commission relating

5 to a contested citation, the Secretary shall have the burden

6 of proving by a preponderance of the evidence—

7 ‘‘(1) the existence of a violation;

8 ‘‘(2) that the violation for which the citation

9 was issued constitutes a realistic hazard to the safe10 ty and health of the affected employees;

11 ‘‘(3) that there is a likelihood that such hazard

12 will result in employee injury;

13 ‘‘(4) that the employer knew or with the exer14 cise of reasonable diligence should have known of the

15 hazard and violation; and

16 ‘‘(5) that a technically and economically feasible

17 method of compliance exists.’’.

18 (b) JUDICIAL REVIEW.—Section 11(a) (29 U.S.C.

19 660(a)) is amended by inserting after ‘‘conclusive.’’ at the

20 end of the sixth sentence the following: ‘‘The court shall

21 make its own determination as to questions of law, includ22 ing the reasonable interpretation of standards, and shall

23 not accord deference to either the Commission or the Sec24 retary.’’.
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1 SEC. 9. DISCRIMINATION.

2 (a) COMPLAINT.—Section 11(c)(2) (29 U.S.C.

3 660(c)(2)) is amended to read as follows:

4 ‘‘(2)(A)(i) Any employee who believes that such em5 ployee has been discharged or otherwise discriminated

6 against by the employer of such employee in violation of

7 this subsection may, within 30 days after such violation

8 occurs, file a complaint with the Secretary alleging such

9 discrimination.

10 ‘‘(ii) A complaint may not be filed under clause (i)

11 after the expiration of the 30-day period described in such

12 clause.

13 ‘‘(B)(i) Upon receipt of a complaint under subpara14 graph (A) and as the Secretary considers appropriate, the

15 Secretary shall conduct an investigation.

16 ‘‘(ii) If upon such investigation, the Secretary deter17 mines that the provisions of this subsection have been vio18 lated, the Secretary shall attempt to eliminate the alleged

19 violation by informal methods.

20 ‘‘(iii) Nothing said or done, during the use of the in21 formal methods applied under clause (ii) may be made

22 public by the Secretary or used as evidence in any subse23 quent proceeding.

24 ‘‘(iv) The Secretary shall make a determination con25 cerning the complaint as soon as possible and, in any
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1 event, not later than 90 days after the date of the filing

2 of the complaint.

3 ‘‘(C) If the Secretary is unable to resolve the alleged

4 violation through informal methods, the Secretary shall

5 notify the parties in writing that conciliation efforts have

6 failed.

7 ‘‘(D)(i) Not later than 90 days after the date on

8 which the Secretary notifies the parties under subpara9 graph (C) in writing that conciliation efforts have failed,

10 the Secretary may then bring an action in any appropriate

11 United States district court against an employer described

12 in subparagraph (A).

13 ‘‘(ii) The employer against whom an action under

14 clause (i) is brought may demand that the issue of dis15 crimination be determined by jury trial.

16 ‘‘(E) Upon a showing of discrimination under sub17 paragraph (D)(ii), the Secretary may seek, and the court

18 may award, any and all of the following types of relief:

19 ‘‘(i) An injunction to enjoin a continued viola20 tion of this subsection.

21 ‘‘(ii) Reinstatement of the employee to the same

22 or equivalent position.

23 ‘‘(iii) Reinstatement of full benefits and senior24 ity rights.

25 ‘‘(iv) Compensation for lost wages and benefits.
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1 ‘‘(F) This subsection shall be the exclusive means of

2 securing a remedy for any aggrieved employee.’’.

3 (b) ACCESS TO RECORDS.—Section 11(c)(3) (29

4 U.S.C. 660(c)(3)) is amended to read as follows:

5 ‘‘(3) Any records of the Secretary, including the files

6 of the Secretary, relating to investigations and enforce7 ment proceedings pursuant to this subsection shall not be

8 subject to inspection and examination by the public while

9 such inspections and proceedings are open or pending in

10 the United States district court.’’.

11 SEC. 10. INJUNCTION AGAINST IMMINENT DANGER.

12 Section 13 (29 U.S.C. 662) is amended—

13 (1) by striking subsection (c);

14 (2) by redesignating subsections (a) and (b) as

15 subsections (b) and (c), respectively; and

16 (3) by inserting before subsection (b) (as so re17 designated by paragraph (2)) the following new sub18 section:

19 ‘‘(a)(1)(A)(i) If the Secretary determines, on the

20 basis of an inspection or investigation under this section,

21 that a condition or practice in a place of employment is

22 such that an imminent danger to safety or health exists

23 that could reasonably be expected to cause death or seri24 ous physical harm or permanent impairment of the health

25 or functional capacity of employees if not corrected imme-
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1 diately or before the imminence of such danger can be

2 eliminated through the enforcement procedures otherwise

3 provided by this Act, the Secretary—

4 ‘‘(I) may inform the employer, and provide no5 tice by posting at the place of employment to the af6 fected employees of the danger; and

7 ‘‘(II) shall request that the condition or practice

8 be corrected immediately or that the affected em9 ployees be immediately removed from exposure to

10 such danger.

11 ‘‘(ii) A notice under clause (i) shall be removed by

12 the Secretary from the place of employment not later than

13 72 hours after the notice was first posted unless a court

14 in an action brought under subsection (c) requires that

15 the notice be maintained.

16 ‘‘(B) The Secretary shall not prevent the continued

17 activity of employees whose presence is necessary to avoid,

18 correct, or remove the imminent danger or to maintain

19 the capacity of a continuous process operation to resume

20 normal operations without a cessation of operations or

21 where cessation of operations is necessary, to permit the

22 cessation to be accomplished in a safe and orderly way.

23 ‘‘(2) No employer shall discharge, or in any manner

24 discriminate against any employee, because the employee

25 has refused to perform a duty that has been identified as
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1 the source of an imminent danger by a notice posted pur2 suant to paragraph (1).’’.

3 SEC. 11. SMALL BUSINESS ASSISTANCE AND TRAINING.

4 Section 16 (29 U.S.C. 655) is amended—

5 (1) by inserting ‘‘(a)’’ after ‘‘16.’’; and

6 (2) by adding at the end the following new sub7 sections:

8 ‘‘(b) The Secretary shall publish and make available

9 to employers a model injury prevention program that if

10 completed by the employer shall be deemed to meet the

11 requirement for an exemption under section 8A or a re12 duction in penalty under section 17(a)(2)(B).

13 ‘‘(c) The Secretary shall establish and implement a

14 program to provide technical assistance and consultative

15 services for employers and employees, either directly or by

16 grant or contract, concerning work site safety and health

17 and compliance with this Act. Such assistance shall be tar18 geted at small employers and the most hazardous indus19 tries.

20 ‘‘(d) This subsection authorizes the provision of con21 sultative services to employers through cooperative agree22 ments between the States and the Occupational Safety

23 and Health Administration. The consultative services pro24 vided under a cooperative agreement under this subsection
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1 shall be the same type of services described in part 1908

2 of title 39 of the Code of Federal Regulations.

3 ‘‘(e) Not less than one-fourth of the annual appro4 priation made to the Secretary to carry out this Act shall

5 be expended for the purposes described in this section.’’.

6 SEC. 12. PENALTIES.

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

8 amended—

9 (1) by striking out subsections (a), (b), (c), (f),

10 (i), (j), and (k);

11 (2) by redesignating subsections (d), (e), (g),

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

13 respectively; and

14 (3) by inserting after ‘‘17.’’ the following:

15 ‘‘(a)(1) Any employer who violates the requirements

16 of section 5, any standard, rule, or order promulgated pur17 suant to section 6, or any other regulation promulgated

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

19 than $7,000. The Commission shall have authority to as20 sess all civil penalties provided for in this section, giving

21 due consideration to the appropriateness of the penalty

22 with respect to—

23 ‘‘(A) the size of the employer;

24 ‘‘(B) the number of employees exposed to the

25 violation;
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1 ‘‘(C) the likely severity of any injuries directly

2 resulting from such violation;

3 ‘‘(D) the probability that the violation could re4 sult in injury or illness;

5 ‘‘(E) the good faith of the employer in correct6 ing the violation after the violation has been identi7 fied;

8 ‘‘(F) the extent to which employee misconduct

9 was responsible for the violation; and

10 ‘‘(G) the effect of the penalty on the ability of

11 the employee to stay in business.

12 ‘‘(2) In assessing penalties under this section the

13 Commission shall have authority to determine whether vio14 lations should be classified as willful, repeated, serious,

15 other than serious, or de minimus. Regardless of the clas16 sification of a violation, there shall be only one penalty

17 assessed for each violation. The Commission may not en18 hance the penalty based on the number of employees ex19 posed to the violation or the number of instances of the

20 same violation.

21 ‘‘(3)(A) A penalty assessed under paragraph (1) shall

22 be reduced by 25 percent in any case in which the em23 ployer—
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1 ‘‘(i) maintains a written safety and health pro2 gram for the work site at which the violation for

3 which the penalty was assessed occurred; or

4 ‘‘(ii) shows that the work site at which the vio5 lation for which the penalty was assessed occurred

6 has an exemplary safety record.

7 ‘‘(B) If the employer maintains a program described

8 in subparagraph (A)(i) and has the record described in

9 subparagraph (A)(ii), the penalty shall be reduced by 50

10 percent.

11 ‘‘(4) No penalty shall be assessed against an em12 ployer for a violation other than a violation previously

13 cited by the Secretary or a violation that creates an immi14 nent danger or has caused death or a willful violation that

15 has caused serious injury to an employee.’’.

16 (b) CRIMINAL PENALTIES.—Section 17(c) (29 U.S.C.

17 666(c)) (as so redesignated by subsection (a)) is amended

18 by adding at the end the following new sentence: ‘‘No em19 ployer shall be subject to any State or Federal criminal

20 prosecution arising out of a workplace accident other than

21 under this subsection.’’.

22 SEC. 13. TRANSFER OF CERTAIN OCCUPATIONAL SAFETY

23 AND HEALTH FUNCTIONS.

24 (a) TRANSFER OF FUNCTIONS; REPEAL.—
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1 (1) NATIONAL INSTITUTE OF OCCUPATIONAL

2 SAFETY AND HEALTH.—The functions and authori3 ties provided to the National Institute of Occupa4 tional Safety and Health under section 22 of the Oc5 cupational Safety and Health Act of 1970 (29

6 U.S.C. 671) are transferred to the Secretary of

7 Labor.

8 (2) SECRETARY OF HEALTH AND HUMAN SERV9 ICES.—The responsibilities and authorities of the

10 Secretary of Health and Human Services under sec11 tions 20, 21, and 22 of the Occupational Safety and

12 Health Act of 1970 (29 U.S.C. 669, 670, and 671)

13 are transferred to the Secretary of Labor.

14 (3) REPEAL.—Section 22 (29 U.S.C. 671) is

15 repealed.

16 (b) ADDITIONAL FUNCTIONS.—In carrying out the

17 functions transferred under subsection (a), the Secretary

18 of Labor shall take such actions as are necessary to avoid

19 duplication of programs and to maximize training, edu20 cation, and research under the Occupational Safety and

21 Health Act of 1970 (29 U.S.C. 671 et seq.).

22 (c) REFERENCES.—

23 (1) IN GENERAL.—Each reference in any other

24 Federal law, Executive order, rule, regulation, or
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1 delegation of authority, or any document of or relat2 ing to—

3 (A) the head of the transferred office, or

4 the Secretary of Health and Human Services,

5 with regard to functions transferred under sub6 section (a), shall be deemed to refer to the Sec7 retary of Labor; and

8 (B) a transferred office with regard to

9 functions transferred under subsection (a), shall

10 be deemed to refer to the Department of Labor.

11 (2) DEFINITION.—For the purpose of this sub12 section, the term ‘‘office’’ includes any office, admin13 istration, agency, institute, unit, organizational en14 tity, or component thereof.

15 (d) CONFORMING AMENDMENTS.—Not later than

16 180 days after the effective date of this Act, if the Sec17 retary of Labor determines (after consultation with the

18 appropriate committees of Congress and the Director of

19 the Office of Management and Budget) that technical and

20 conforming amendments to Federal statutes are necessary

21 to carry out the changes made by this section, the Sec22 retary of Labor shall prepare and submit to Congress rec23 ommended legislation containing the amendments.
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1 SEC. 14. PREVENTION OF ALCOHOL AND SUBSTANCE

2 ABUSE.

3 The Occupational Safety and Health Act is amend4 ed—

5 (1) by striking sections 28 through 31;

6 (2) by redesignating sections 32, 33, and 34 as

7 sections 29, 30, and 31, respectively; and

8 (3) by inserting after section 27, the following

9 new section:

10 ‘‘SEC. 28. ALCOHOL AND SUBSTANCE ABUSE TESTING.

11 ‘‘(a) IN GENERAL.—Whenever there exists the rea12 sonable probability that the safety or health of any em13 ployee could be endangered because of the use of alcohol

14 or a controlled substance in the workplace, the employer

15 of such employee may establish and implement an alcohol

16 and substance abuse testing program in accordance with

17 subsection (b).

18 ‘‘(b) STANDARDS.—The Secretary shall establish

19 standards under section 6 for substance abuse and alcohol

20 testing programs established under subsection (a) as fol21 lows:

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

23 conform, to the maximum extent practicable, to sub24 part B of the mandatory guidelines for Federal

25 workplace drug testing programs published on April

26 11, 1988, by the Secretary of Health and Human
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1 Services at 53 F.R. 11979 and any amendments

2 adopted to such guidelines.

3 ‘‘(2) The alcohol testing program shall include

4 an alcohol breath analysis and shall conform, to the

5 maximum extent practicable; to any guidelines devel6 oped by the Secretary of Transportation for alcohol

7 testing of mass transit employees under the Depart8 ment of Transportation and Related Agencies Ap9 propriations Act, 1992.

10 ‘‘(c) TESTING PRIOR TO EMPLOYMENT.—This sec11 tion shall not be construed to prohibit an employer from

12 requiring an employee to submit to and pass an alcohol

13 or substance abuse test—

14 ‘‘(1) prior to employment by the employer;

15 ‘‘(2) on a for cause basis or where the employer

16 has reasonable suspicion to believe that such em17 ployee is using or is under the influence of alcohol

18 or a controlled substance;

19 ‘‘(3) where such test is administered as part of

20 a scheduled medical examination;

21 ‘‘(4) in the case of an accident or incident in22 volving the actual or potential loss of human life,

23 bodily injury, or property damage; or
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1 ‘‘(5) during and for a reasonable period of time

2 (not to exceed 5 years) after the conclusion of an al3 cohol or substance abuse treatment program.’’.

4 SEC. 15. ECONOMIC IMPACT ANALYSIS.

5 The Secretary of Labor shall conduct a continuing

6 comprehensive analysis of the costs and benefits of each

7 standard in effect under section 6 of the Occupational

8 Safety and Health Act of 1970. The Secretary shall report

9 the results of the analysis to Congress upon the expiration

10 of the 2-year period beginning on the date of the enact11 ment of this Act and every 2 years thereafter.

12 SEC. 16. LABOR RELATIONS.

13 (a) DEFINITIONS.—Paragraph (5) of section 2 of the

14 National Labor Relations Act (29 U.S.C. 152(5)) is

15 amended by adding at the end the following new sentence:

16 ‘‘The term does not include a safety committee that is

17 comprised of an employer and the employees of the em18 ployer and that is jointly established by the employer and

19 the employees of the employer, or by the employer and

20 a labor organization representing the employees of the em21 ployer, to carry out efforts to reduce injuries and disease

22 arising out of employment.’’.

23 (b) UNFAIR LABOR PRACTICES.—Section 8(a)(2) of

24 the National Labor Relations Act (29 U.S.C. 158(a)(2))

25 is amended by inserting before the semicolon at the end
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1 thereof the following: ‘‘Provided, further, That it shall not

2 constitute an unfair practice under this paragraph for an

3 employer and the employees of the employer, or for an

4 employer and a labor organization representing the em5 ployees of the employer, to jointly establish a safety com6 mittee in which the employer and the employees of the

7 employer carry out efforts to reduce injuries and disease

8 arising out of employment;’’.

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