II 

115TH CONGRESS 

2D SESSION S. 2621 

To amend the Occupational Safety and Health Act of 1970 to expand coverage under the Act, to increase protections for whistleblowers, to increase penalties for high gravity violations, to adjust penalties for inflation, to provide rights for victims or their family members, and for 

other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 22, 2018 

Ms. BALDWIN (for herself, Mrs. MURRAY, Mr. BROWN, Ms. WARREN, Mr. 

MARKEY, and Mr. SANDERS) introduced the following bill; which was 

read twice and referred to the Committee on Health, Education, Labor, 

and Pensions 

A BILL 

To amend the Occupational Safety and Health Act of 1970 

to expand coverage under the Act, to increase protections 

for whistleblowers, to increase penalties for high gravity 

violations, to adjust penalties for inflation, to provide 

rights for victims or their family members, 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; TABLE OF CONTENTS. 

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

5 ‘‘Protecting America’s Workers Act’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents for 

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. References. 

TITLE I—COVERAGE OF PUBLIC EMPLOYEES, VOLUNTARY 

EMERGENCY RESPONDERS, AND APPLICATION OF ACT 

Sec. 101. Coverage of public employees. 

Sec. 102. Authorized employee representative. 

Sec. 103. Application of Act. 

TITLE II—INCREASING WHISTLEBLOWER PROTECTIONS 

Sec. 201. Enhanced protections from retaliation. 

TITLE III—IMPROVING REPORTING, INSPECTION, AND 

ENFORCEMENT 

Sec. 301. General duty of employers. 

Sec. 302. Occupational safety and health standards. 

Sec. 303. Posting of employee rights. 

Sec. 304. Employer reporting of work-related injuries, illnesses, deaths, and 

hospitalizations; prohibition on discouraging employee reporting. 

Sec. 305. No loss of employee pay for inspections. 

Sec. 306. Investigations of fatalities and significant incidents. 

Sec. 307. Prohibition on unclassified citations. 

Sec. 308. Victims’ rights. 

Sec. 309. Right to contest citations and penalties. 

Sec. 310. Correction of serious, willful, or repeated violations pending contest 

and procedures for a stay. 

Sec. 311. Inaction by the Review Commission. 

Sec. 312. Conforming amendments. 

Sec. 313. Civil penalties. 

Sec. 314. Criminal penalties. 

Sec. 315. Prejudgment interest. 

TITLE IV—STATE PLANS 

Sec. 401. Concurrent enforcement authority and review of State occupational 

safety and health plans. 

Sec. 402. Evaluation of repeated violations in State plans. 

TITLE V—NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY 

AND HEALTH 

Sec. 501. Health hazard evaluations by the National Institute for Occupational 

Safety and Health. 

TITLE VI—EFFECTIVE DATE 

Sec. 601. Effective date. 


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1 SEC. 2. REFERENCES. 

2 Except as otherwise expressly provided, whenever in 

3 this Act an amendment or repeal is expressed in terms 

4 of an amendment to, or repeal of, a section or other provi5 sion, the reference shall be considered to be made to a 

6 section or other provision of the Occupational Safety and 

7 Health Act of 1970 (29 U.S.C. 651 et seq.). 

8 TITLE I—COVERAGE OF PUBLIC 

9 EMPLOYEES, VOLUNTARY 

10 EMERGENCY RESPONDERS, 

11 AND APPLICATION OF ACT 

12 SEC. 101. COVERAGE OF PUBLIC EMPLOYEES. 

13 (a) IN GENERAL.—Section 3(5) (29 U.S.C. 652(5)) 

14 is amended by striking ‘‘but does not include’’ and all that 

15 follows through the period at the end and inserting ‘‘in16 cluding the United States, a State, or a political subdivi17 sion of a State.’’. 

18 (b) CONSTRUCTION.—Nothing in this Act shall be 

19 construed to affect the application of section 18 of the Oc20 cupational Safety and Health Act of 1970 (29 U.S.C. 

21 667). 

22 SEC. 102. AUTHORIZED EMPLOYEE REPRESENTATIVE. 

23 Section 3 (29 U.S.C. 652) is amended by adding at 

24 the end the following: 


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1 ‘‘(15) AUTHORIZED EMPLOYEE REPRESENTA2 TIVE.—The term ‘authorized employee representa3 tive’— 

4 ‘‘(A) means any person or organization 

5 that for the purposes of this Act represents 2 

6 or more employees at an establishment, factory, 

7 plant, construction site, or other workplace, or 

8 other environment where work is performed by 

9 employees for an employer; and 

10 ‘‘(B) includes a representative authorized 

11 by employees, a representative of employees, or 

12 any other representative of employees under 

13 this Act.’’. 

14 SEC. 103. APPLICATION OF ACT. 

15 Section 4(b) (29 U.S.C. 653(b)) is amended— 

16 (1) by redesignating paragraphs (2), (3), and 

17 (4) as paragraphs (5), (6), and (7), respectively; and 

18 (2) by striking paragraph (1) and inserting the 

19 following: 

20 ‘‘(1) If a Federal agency has promulgated and is en21 forcing a standard or regulation affecting occupational 

22 safety or health of some or all of the employees within 

23 that agency’s regulatory jurisdiction, and the Secretary 

24 determines that such a standard or regulation as promul25 gated and the manner in which the standard or regulation 


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1 is being enforced provides protection to those employees 

2 that is at least as effective as the protection provided to 

3 those employees by this Act and the Secretary’s enforce4 ment of this Act, the Secretary may publish a certification 

5 notice in the Federal Register. The notice shall set forth 

6 that determination and the reasons for the determination 

7 and certify that the Secretary has ceded jurisdiction to 

8 that Federal agency with respect to the specified standard 

9 or regulation affecting occupational safety or health. In 

10 determining whether to cede jurisdiction to a Federal 

11 agency, the Secretary shall seek to avoid duplication of, 

12 and conflicts between, health and safety requirements. 

13 Such certification shall remain in effect unless and until 

14 rescinded by the Secretary. 

15 ‘‘(2) The Secretary shall, by regulation, establish pro16 cedures by which any person who may be adversely af17 fected by a decision of the Secretary certifying that the 

18 Secretary has ceded jurisdiction to another Federal agency 

19 pursuant to paragraph (1) may petition the Secretary to 

20 rescind a certification notice under paragraph (1). Upon 

21 receipt of such a petition, the Secretary shall investigate 

22 the matter involved and shall, within 90 days after receipt 

23 of the petition, publish a decision with respect to the peti24 tion in the Federal Register. 

25 ‘‘(3) Any person who may be adversely affected by— 


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1 ‘‘(A) a decision of the Secretary certifying that 

2 the Secretary has ceded jurisdiction to another Fed3 eral agency pursuant to paragraph (1); or 

4 ‘‘(B) a decision of the Secretary denying a peti5 tion to rescind such a certification notice under 

6 paragraph (1), 

7 may, not later than 60 days after such decision is pub8 lished in the Federal Register, file a petition challenging 

9 such decision with the United States court of appeals for 

10 the circuit in which such person resides or such person 

11 has a principal place of business, for judicial review of 

12 such decision. A copy of the petition shall be forthwith 

13 transmitted by the clerk of the court to the Secretary. The 

14 Secretary’s decision shall be set aside if found to be arbi15 trary, capricious, an abuse of discretion, or otherwise not 

16 in accordance with law. 

17 ‘‘(4) Nothing in this Act shall apply to working condi18 tions covered by the Federal Mine Safety and Health Act 

19 of 1977 (30 U.S.C. 801 et seq.).’’. 

20 TITLE II—INCREASING 

21 WHISTLEBLOWER PROTECTIONS 

22 SEC. 201. ENHANCED PROTECTIONS FROM RETALIATION. 

23 (a) ACTIONS.—Section 11(c)(1) (29 U.S.C. 

24 660(c)(1)) is amended to read as follows: 


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1 ‘‘(c) (1) No person shall discharge or cause to be dis2 charged, or in any manner discriminate against or cause 

3 to be discriminated against, any employee or other indi4 vidual performing work for the person because— 

5 ‘‘(A) such employee or other individual has filed 

6 any complaint or instituted or caused to be insti7 tuted any proceeding under or related to this Act; 

8 ‘‘(B) such employee or other individual has tes9 tified or is about to testify before Congress or in any 

10 Federal or State proceeding related to safety or 

11 health; 

12 ‘‘(C) such employee or other individual has re13 fused to violate any provision of this Act; or 

14 ‘‘(D) of the exercise of such employee or other 

15 individual on behalf of himself or others of any right 

16 afforded by this Act, including the reporting of any 

17 injury, illness, or unsafe condition to the employer, 

18 agent of the employer, safety and health committee 

19 involved, or employee safety and health representa20 tive involved.’’. 

21 (b) PROHIBITION OF RETALIATION.—Section 11(c) 

22 (29 U.S.C. 660(c)) is amended by striking paragraph (2) 

23 and inserting the following: 

24 ‘‘(2) PROHIBITION OF RETALIATION.— 


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1 ‘‘(A) IN GENERAL.—No person shall discharge, 

2 or cause to be discharged, or in any manner dis3 criminate against, or cause to be discriminated 

4 against, an employee or other individual performing 

5 work for the person for refusing to perform the du6 ties of the employee or other individual if the em7 ployee or other individual has a reasonable appre8 hension that performing such duties would result in 

9 serious injury to, or serious impairment of the 

10 health of, the employee or other individual or other 

11 employees or other such individuals. 

12 ‘‘(B) CIRCUMSTANCES.—For purposes of sub13 paragraph (A), the circumstances causing the good14 faith belief of the employee or other individual that 

15 performing such duties would pose a safety or health 

16 hazard shall be of such a nature that a reasonable 

17 person, under the circumstances confronting the em18 ployee or other individual, would conclude that there 

19 is such a hazard. In order to qualify for protection 

20 under this paragraph, the employee or other indi21 vidual, when practicable, shall have communicated or 

22 attempted to communicate the safety or health con23 cern to the employer and have not received from the 

24 employer a response reasonably calculated to allay 

25 such concern.’’. 


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1 (c) PROCEDURE.—Section 11(c) (29 U.S.C. 660(c)) 

2 is amended by striking paragraph (3) and inserting the 

3 following: 

4 ‘‘(3) COMPLAINT.—Any employee, or other indi5 vidual performing work for a person, who believes 

6 that the employee or other individual has been dis7 charged, disciplined, or otherwise discriminated 

8 against by any person in violation of paragraph (1) 

9 or (2) may seek relief for such violation by filing a 

10 complaint with the Secretary under paragraph (5). 

11 ‘‘(4) STATUTE OF LIMITATIONS.— 

12 ‘‘(A) IN GENERAL.—An employee or other 

13 individual performing work for a person may 

14 take the action permitted by paragraph (3) not 

15 later than 180 days after the later of— 

16 ‘‘(i) the date on which an alleged vio17 lation of paragraph (1) or (2) occurs; or 

18 ‘‘(ii) the date on which the employee 

19 or other individual knows or should reason20 ably have known that such alleged violation 

21 occurred. 

22 ‘‘(B) REPEAT VIOLATION.—Except in 

23 cases when the employee or other individual has 

24 been discharged, a violation of paragraph (1) or 


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1 (2) shall be considered to have occurred on the 

2 last date an alleged repeat violation occurred. 

3 ‘‘(5) INVESTIGATION.— 

4 ‘‘(A) IN GENERAL.—An employee or other 

5 individual performing work for a person may, 

6 within the time period required under para7 graph (4)(A), file a complaint with the Sec8 retary alleging a violation of paragraph (1) or 

9 (2). If the complaint alleges a prima facie case, 

10 the Secretary shall conduct an investigation of 

11 the allegations in the complaint, which— 

12 ‘‘(i) shall include— 

13 ‘‘(I) interviewing the complain14 ant; 

15 ‘‘(II) providing the respondent an 

16 opportunity to— 

17 ‘‘(aa) submit to the Sec18 retary a written response to the 

19 complaint; and 

20 ‘‘(bb) meet with the Sec21 retary to present statements from 

22 witnesses or provide evidence; 

23 and 

24 ‘‘(III) providing the complainant 

25 an opportunity to— 


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1 ‘‘(aa) receive any statements 

2 or evidence provided to the Sec3 retary; 

4 ‘‘(bb) meet with the Sec5 retary; and 

6 ‘‘(cc) rebut any statements 

7 or evidence; and 

8 ‘‘(ii) may include issuing subpoenas 

9 for the purposes of such investigation. 

10 ‘‘(B) DECISION.—Not later than 90 days 

11 after the filing of the complaint, the Secretary 

12 shall— 

13 ‘‘(i) determine whether reasonable 

14 cause exists to believe that a violation of 

15 paragraph (1) or (2) has occurred; and 

16 ‘‘(ii) issue a decision granting or de17 nying relief. 

18 ‘‘(6) PRELIMINARY ORDER FOLLOWING INVES19 TIGATION.—If, after completion of an investigation 

20 under paragraph (5)(A), the Secretary finds reason21 able cause to believe that a violation of paragraph 

22 (1) or (2) has occurred, the Secretary shall issue a 

23 preliminary order providing relief authorized under 

24 paragraph (14) at the same time the Secretary 

25 issues a decision under paragraph (5)(B). If a de 


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1 novo hearing is not requested within the time period 

2 required under paragraph (7)(A)(i), such prelimi3 nary order shall be deemed a final order of the Sec4 retary and is not subject to judicial review. 

5 ‘‘(7) HEARING.— 

6 ‘‘(A) REQUEST FOR HEARING.— 

7 ‘‘(i) IN GENERAL.—A de novo hearing 

8 on the record before an administrative law 

9 judge may be requested— 

10 ‘‘(I) by the complainant or re11 spondent within 30 days after receiv12 ing notification of a decision granting 

13 or denying relief issued under para14 graph (5)(B) or a preliminary order 

15 under paragraph (6), respectively; 

16 ‘‘(II) by the complainant within 

17 30 days after the date the complaint 

18 is dismissed without investigation by 

19 the Secretary under paragraph (5)(A); 

20 or 

21 ‘‘(III) by the complainant within 

22 120 days after the date of filing the 

23 complaint, if the Secretary has not 

24 issued a decision under paragraph 

25 (5)(B). 


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1 ‘‘(ii) REINSTATEMENT ORDER.—The 

2 request for a hearing shall not operate to 

3 stay any preliminary reinstatement order 

4 issued under paragraph (6). 

5 ‘‘(B) PROCEDURES.— 

6 ‘‘(i) IN GENERAL.—A hearing re7 quested under this paragraph shall be con8 ducted expeditiously and in accordance 

9 with rules established by the Secretary for 

10 hearings conducted by administrative law 

11 judges. 

12 ‘‘(ii) SUBPOENAS; PRODUCTION OF

13 EVIDENCE.—In conducting any such hear14 ing, the administrative law judge may issue 

15 subpoenas. The respondent or complainant 

16 may request the issuance of subpoenas 

17 that require the deposition of, or the at18 tendance and testimony of, witnesses and 

19 the production of any evidence (including 

20 any books, papers, documents, or record21 ings) relating to the matter under consid22 eration. 

23 ‘‘(iii) DECISION.—The administrative 

24 law judge shall issue a decision not later 

25 than 90 days after the date on which a 


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1 hearing was requested under this para2 graph and promptly notify, in writing, the 

3 parties and the Secretary of such decision, 

4 including the findings of fact and conclu5 sions of law. If the administrative law 

6 judge finds that a violation of paragraph 

7 (1) or (2) has occurred, the judge shall 

8 issue an order for relief under paragraph 

9 (14). If review under paragraph (8) is not 

10 timely requested, such order shall be 

11 deemed a final order of the Secretary that 

12 is not subject to judicial review. 

13 ‘‘(8) ADMINISTRATIVE APPEAL.— 

14 ‘‘(A) IN GENERAL.—Not later than 30 

15 days after the date of notification of a decision 

16 and order issued by an administrative law judge 

17 under paragraph (7), the complainant or re18 spondent may file, with objections, an adminis19 trative appeal with an administrative review 

20 body designated by the Secretary (referred to in 

21 this paragraph as the ‘review board’). 

22 ‘‘(B) STANDARD OF REVIEW.—In review23 ing the decision and order of the administrative 

24 law judge, the review board shall affirm the de25 cision and order if it is determined that the facVerDate Sep 11 2014 00:43 Apr 05, 2018 Jkt 079200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S2621.IS S2621

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1 tual findings set forth therein are supported by 

2 substantial evidence and the decision and order 

3 are made in accordance with applicable law. 

4 ‘‘(C) DECISIONS.—If the review board 

5 grants an administrative appeal, the review 

6 board shall issue a final decision and order af7 firming or reversing, in whole or in part, the 

8 decision under review by not later than 90 days 

9 after receipt of the administrative appeal. If it 

10 is determined that a violation of paragraph (1) 

11 or (2) has occurred, the review board shall issue 

12 a final decision and order providing relief au13 thorized under paragraph (14). Such decision 

14 and order shall constitute final agency action 

15 with respect to the matter appealed. 

16 ‘‘(9) SETTLEMENT IN THE ADMINISTRATIVE

17 PROCESS.— 

18 ‘‘(A) IN GENERAL.—At any time before 

19 issuance of a final order, an investigation or 

20 proceeding under this subsection may be termi21 nated on the basis of a settlement agreement 

22 entered into by the parties. 

23 ‘‘(B) PUBLIC POLICY CONSIDERATIONS.— 

24 Neither the Secretary, an administrative law 

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1 ing under this subsection shall accept a settle2 ment that contains conditions conflicting with 

3 the rights protected under this Act or that are 

4 contrary to public policy, including a restriction 

5 on a complainant’s right to future employment 

6 with employers other than the specific employ7 ers named in a complaint. 

8 ‘‘(10) INACTION BY THE REVIEW BOARD OR AD9 MINISTRATIVE LAW JUDGE.— 

10 ‘‘(A) IN GENERAL.—The complainant may 

11 bring a de novo action described in subpara12 graph (B) if— 

13 ‘‘(i) an administrative law judge has 

14 not issued a decision and order within the 

15 90-day time period required under para16 graph (7)(B)(iii); or 

17 ‘‘(ii) the review board has not issued 

18 a decision and order within the 90-day 

19 time period required under paragraph 

20 (8)(C). 

21 ‘‘(B) DE NOVO ACTION.—Such de novo ac22 tion may be brought at law or equity in the 

23 United States district court for the district 

24 where a violation of paragraph (1) or (2) alleg25 edly occurred or where the complainant resided 


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1 on the date of such alleged violation. The court 

2 shall have jurisdiction over such action without 

3 regard to the amount in controversy and to 

4 order appropriate relief under paragraph (14). 

5 Such action shall, at the request of either party 

6 to such action, be tried by the court with a 

7 jury. 

8 ‘‘(11) JUDICIAL REVIEW.— 

9 ‘‘(A) TIMELY APPEAL TO THE COURT OF

10 APPEALS.—Any party adversely affected or ag11 grieved by a final decision and order issued 

12 under this subsection may obtain review of such 

13 decision and order in the United States Court 

14 of Appeals for the circuit where the violation, 

15 with respect to which such final decision and 

16 order was issued, allegedly occurred or where 

17 the complainant resided on the date of such al18 leged violation. To obtain such review, a party 

19 shall file a petition for review not later than 60 

20 days after the final decision and order was 

21 issued. Such review shall conform to chapter 7 

22 of title 5, United States Code. The commence23 ment of proceedings under this subparagraph 

24 shall not, unless ordered by the court, operate 

25 as a stay of the final decision and order. 


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1 ‘‘(B) LIMITATION ON COLLATERAL AT2 TACK.—An order and decision with respect to 

3 which review may be obtained under subpara4 graph (A) shall not be subject to judicial review 

5 in any criminal or other civil proceeding. 

6 ‘‘(12) ENFORCEMENT OF ORDER.—If a re7 spondent fails to comply with an order issued under 

8 this subsection, the Secretary or the complainant on 

9 whose behalf the order was issued may file a civil ac10 tion for enforcement in the United States district 

11 court for the district in which the violation was 

12 found to occur to enforce such order. If both the 

13 Secretary and the complainant file such action, the 

14 action of the Secretary shall take precedence. The 

15 district court shall have jurisdiction to grant all ap16 propriate relief described in paragraph (14). 

17 ‘‘(13) BURDENS OF PROOF.— 

18 ‘‘(A) CRITERIA FOR DETERMINATION.—In 

19 making a determination or adjudicating a com20 plaint pursuant to this subsection, the Sec21 retary, or an administrative law judge, review 

22 board, or court, may determine that a violation 

23 of paragraph (1) or (2) has occurred only if the 

24 complainant demonstrates that any conduct de25 scribed in paragraph (1) or (2) with respect to 


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1 the complainant was a contributing factor in 

2 the adverse action alleged in the complaint. 

3 ‘‘(B) PROHIBITION.—Notwithstanding sub4 paragraph (A), a decision or order that is favor5 able to the complainant shall not be issued in 

6 any administrative or judicial action pursuant 

7 to this subsection if the respondent dem8 onstrates by clear and convincing evidence that 

9 the respondent would have taken the same ad10 verse action in the absence of such conduct. 

11 ‘‘(14) RELIEF.— 

12 ‘‘(A) ORDER FOR RELIEF.—If the Sec13 retary, or an administrative law judge, review 

14 board, or court, determines that a violation of 

15 paragraph (1) or (2) has occurred, the Sec16 retary, administrative law judge, review board, 

17 or court, respectively, shall have jurisdiction to 

18 order all appropriate relief, including injunctive 

19 relief, and compensatory and exemplary dam20 ages, including— 

21 ‘‘(i) affirmative action to abate the 

22 violation; 

23 ‘‘(ii) reinstatement without loss of po24 sition or seniority, and restoration of the 

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1 sociated with the complainant’s employ2 ment, including opportunities for pro3 motions to positions with equivalent or bet4 ter compensation for which the complain5 ant is qualified; 

6 ‘‘(iii) compensatory and consequential 

7 damages sufficient to make the complain8 ant whole, (including back pay, prejudg9 ment interest, and other damages); and 

10 ‘‘(iv) expungement of all warnings, 

11 reprimands, or derogatory references that 

12 have been placed in paper or electronic 

13 records or databases of any type relating 

14 to the actions by the complainant that 

15 gave rise to the unfavorable personnel ac16 tion, and, at the complainant’s direction, 

17 transmission of a copy of the decision on 

18 the complaint to any person whom the 

19 complainant reasonably believes may have 

20 received such unfavorable information. 

21 ‘‘(B) ATTORNEYS’ FEES AND COSTS.—If 

22 the Secretary or an administrative law judge, 

23 review board, or court grants an order for relief 

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1 spectively, shall assess, at the request of the 

2 employee, or other individual performing work 

3 for the employer, against the employer— 

4 ‘‘(i) reasonable attorneys’ fees; and 

5 ‘‘(ii) costs (including expert witness 

6 fees) reasonably incurred, as determined 

7 by the Secretary, administrative law judge, 

8 review board, or court, respectively, in con9 nection with bringing the complaint upon 

10 which the order was issued. 

11 ‘‘(15) PROCEDURAL RIGHTS.—The rights and 

12 remedies provided for in this subsection may not be 

13 waived by any agreement, policy, form, or condition 

14 of employment, including by any pre-dispute arbitra15 tion agreement or collective bargaining agreement. 

16 ‘‘(16) SAVINGS.—Nothing in this subsection 

17 shall be construed to diminish the rights, privileges, 

18 or remedies of any employee, or other individual per19 forming work for a person, who exercises rights 

20 under any Federal or State law or common law, or 

21 under any collective bargaining agreement. 

22 ‘‘(17) ELECTION OF VENUE.— 

23 ‘‘(A) IN GENERAL.—An employee of an 

24 employer, or other individual performing work 

25 for the employer, who is located in a State that 


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1 has a State plan approved under section 18 

2 may file a complaint alleging a violation of 

3 paragraph (1) or (2) by such employer with— 

4 ‘‘(i) the Secretary under paragraph 

5 (5); or 

6 ‘‘(ii) a State plan administrator in 

7 such State. 

8 ‘‘(B) REFERRALS.—If— 

9 ‘‘(i) the Secretary receives a complaint 

10 pursuant to subparagraph (A)(i), the Sec11 retary shall not refer such complaint to a 

12 State plan administrator for resolution; or 

13 ‘‘(ii) a State plan administrator re14 ceives a complaint pursuant to subpara15 graph (A)(ii), the State plan administrator 

16 shall not refer such complaint to the Sec17 retary for resolution.’’. 

18 (d) RELATION TO ENFORCEMENT.—Section 17(j) 

19 (29 U.S.C. 666(j)) is amended by inserting before the pe20 riod the following: ‘‘, including the history of violations 

21 under section 11(c)’’. 


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1 TITLE III—IMPROVING REPORT2 ING, INSPECTION, AND EN3 FORCEMENT 

4 SEC. 301. GENERAL DUTY OF EMPLOYERS. 

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

6 (1) in subsection (a), by amending paragraph 

7 (1) to read as follows: 

8 ‘‘(1) shall furnish employment and a place of 

9 employment that are free from recognized hazards— 

10 ‘‘(A) that are causing or are likely to cause 

11 death or serious physical harm and that the 

12 employer creates or controls; or 

13 ‘‘(B) to which the employer exposes any 

14 employee of the employer or any other person 

15 performing work at the place of employment; 

16 and’’; and 

17 (2) by adding at the end the following new sub18 section: 

19 ‘‘(c) Each employee or other person exposed to a haz20 ard in violation of subsection (a) may constitute a separate 

21 violation.’’. 

22 SEC. 302. OCCUPATIONAL SAFETY AND HEALTH STAND23 ARDS. 

24 Section 6(a) (29 U.S.C. 655(a)) is amended by strik25 ing ‘‘Without regard’’ and all that follows through ‘‘afVerDate Sep 11 2014 00:43 Apr 05, 2018 Jkt 079200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\S2621.IS S2621

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1 fected employees.’’ and inserting the following: ‘‘(1) With2 out regard to chapters 5 and 6 of title 5, United States 

3 Code, or to the other subsections of this section, the Sec4 retary shall— 

5 ‘‘(A) as soon as practicable during the period 

6 beginning with the effective date of this Act and 

7 ending 2 years after such date, by rule promulgate 

8 as an occupational safety or health standard any na9 tional consensus standard, and any established Fed10 eral standard, unless the Secretary determines that 

11 the promulgation of such a standard would not re12 sult in improved safety or health for specifically des13 ignated employees; and 

14 ‘‘(B) by rule, not later than 2 years after the 

15 effective date under section 601(a) of the Protecting 

16 America’s Workers Act, update any national con17 sensus standard that has been promulgated or incor18 porated by reference pursuant to this subsection, ex19 cept that such a standard shall not be updated pur20 suant to this subparagraph, if— 

21 ‘‘(i) the standard has been superseded by 

22 a standard promulgated pursuant to subsection 

23 (b); or 


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1 ‘‘(ii) the Secretary determines such update 

2 would not result in improved health or safety 

3 for specifically designated employees. 

4 ‘‘(2) In the event of conflict among any such stand5 ards, including national consensus standards, or in the 

6 event of a consolidation of national consensus standards, 

7 the Secretary shall promulgate the standard which assures 

8 the greatest protection of the safety or health of the af9 fected employees. 

10 ‘‘(3) No standard, rule, or regulation promulgated 

11 under this Act, on or after the date of enactment of the 

12 Protecting America’s Workers Act, shall reduce the pro13 tection afforded by a health or safety standard, rule, regu14 lation, or national consensus standard in effect on the day 

15 before the date of enactment of such Act.’’. 

16 SEC. 303. POSTING OF EMPLOYEE RIGHTS. 

17 Section 8(c)(1) (29 U.S.C. 657(c)(1)) is amended by 

18 adding at the end the following new sentence: ‘‘Such regu19 lations shall include provisions requiring employers to post 

20 for employees or other individuals performing work for the 

21 employer information on the protections afforded under 

22 section 11(c).’’. 


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1 SEC. 304. EMPLOYER REPORTING OF WORK-RELATED INJU2 RIES, ILLNESSES, DEATHS, AND HOS3 PITALIZATIONS; PROHIBITION ON DISCOUR4 AGING EMPLOYEE REPORTING. 

5 Section 8(c)(2) (29 U.S.C. 657(c)(2)) is amended by 

6 adding at the end the following new sentences: ‘‘Such reg7 ulations shall require site-controlling employers to keep a 

8 site log for all recordable injuries and illnesses occurring 

9 among all employees on the particular site, including em10 ployees of the site-controlling employer or others who are 

11 performing work at the particular site (including inde12 pendent contractors). Such regulations shall require em13 ployers to promptly notify the Secretary of any work-re14 lated death or work-related injury or illness that results 

15 in the in-patient hospitalization of an employee for medical 

16 treatment, amputation, or loss of an eye, and shall pro17 hibit the employer from adopting or implementing policies 

18 or practices by the employer that have the effect of dis19 couraging accurate recordkeeping and the reporting of 

20 work-related injuries or illnesses by any employee or in 

21 any manner discriminates or provides for adverse action 

22 against any employee for reporting a work-related injury 

23 or illness. For purposes of this paragraph, the term ‘site24 controlling employer’ means the employer that has pri25 mary control over a work site at which employees of more 


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1 than one employer work, such as by hiring or coordinating 

2 the work of other employers working at the site.’’. 

3 SEC. 305. NO LOSS OF EMPLOYEE PAY FOR INSPECTIONS. 

4 Section 8(e) (29 U.S.C. 657(e)) is amended by insert5 ing after the first sentence the following: ‘‘Time spent by 

6 an employee participating in or aiding any such inspection 

7 shall be deemed to be hours worked and no employee shall 

8 suffer any loss of wages, benefits, or other terms and con9 ditions of employment for having participated in or aided 

10 any such inspection.’’. 

11 SEC. 306. INVESTIGATIONS OF FATALITIES AND SIGNIFI12 CANT INCIDENTS. 

13 Section 8 (29 U.S.C. 657) is amended by adding at 

14 the end the following new subsection: 

15 ‘‘(i) INVESTIGATION OF FATALITIES AND SERIOUS

16 INCIDENTS.— 

17 ‘‘(1) IN GENERAL.—The Secretary shall investigate 

18 any significant incident or an incident resulting in death 

19 that occurs in a place of employment. 

20 ‘‘(2) EVIDENCE PRESERVATION.—If a significant in21 cident or an incident resulting in death occurs in a place 

22 of employment, the employer shall promptly notify the 

23 Secretary of the incident involved and shall take appro24 priate measures to prevent the destruction or alteration 

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1 dent. The appropriate measures required by this para2 graph do not prevent an employer from taking action on 

3 a worksite to prevent injury to employees or substantial 

4 damage to property or to avoid disruption of essential 

5 services necessary to public safety, provided that if an em6 ployer takes such action, the employer shall notify the Sec7 retary of the action in a timely fashion. 

8 ‘‘(3) DEFINITIONS.—In this subsection: 

9 ‘‘(A) INCIDENT RESULTING IN DEATH.—The 

10 term ‘incident resulting in death’ means an incident 

11 that results in the death of an employee. 

12 ‘‘(B) SIGNIFICANT INCIDENT.—The term ‘sig13 nificant incident’ means an incident that results in 

14 the in-patient hospitalization of 2 or more employees 

15 for medical treatment.’’. 

16 SEC. 307. PROHIBITION ON UNCLASSIFIED CITATIONS. 

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

18 the end the following: 

19 ‘‘(d) No citation for a violation of this Act may be 

20 issued, modified, or settled under this section without a 

21 designation enumerated in section 17 with respect to such 

22 violation.’’. 


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1 SEC. 308. VICTIMS’ RIGHTS. 

2 The Occupational Safety and Health Act of 1970 is 

3 amended by inserting after section 9 (29 U.S.C. 658) the 

4 following: 

5 ‘‘SEC. 9A. VICTIMS’ RIGHTS. 

6 ‘‘(a) RIGHTS BEFORE THE SECRETARY.—A victim, 

7 or the representative of a victim, shall be afforded the 

8 right, with respect to an inspection or investigation con9 ducted under section 8 to— 

10 ‘‘(1) meet with the Secretary regarding the in11 spection or investigation conducted under such sec12 tion before the Secretary’s decision to issue a cita13 tion or take no action; 

14 ‘‘(2) receive, at no cost, a copy of any citation 

15 or report, issued as a result of such inspection or in16 vestigation, at the same time as the employer re17 ceives such citation or report; 

18 ‘‘(3) be informed of any notice of contest or ad19 dition of parties to the proceedings filed under sec20 tion 10(c); and 

21 ‘‘(4) be provided notification of the date and 

22 time or any proceedings, service of pleadings, and 

23 other relevant documents, and an explanation of the 

24 rights of the employer, employee and employee rep25 resentative, and victim to participate in proceedings 

26 conducted under section 10(c). 


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1 ‘‘(b) RIGHTS BEFORE THE COMMISSION.—Upon re2 quest, a victim or representative of a victim shall be af3 forded the right with respect to a work-related bodily in4 jury or death to— 

5 ‘‘(1) be notified of the time and date of any 

6 proceeding before the Commission; 

7 ‘‘(2) receive pleadings and any decisions relat8 ing to the proceedings; and 

9 ‘‘(3) be provided an opportunity to appear and 

10 make a statement in accordance with the rules pre11 scribed by the Commission. 

12 ‘‘(c) MODIFICATION OF CITATION.—Before entering 

13 into an agreement to withdraw or modify a citation issued 

14 as a result of an inspection or investigation of an incident 

15 under section 8, the Secretary shall notify a victim or rep16 resentative of a victim and provide the victim or represent17 ative of a victim with an opportunity to appear and make 

18 a statement before the parties conducting settlement nego19 tiations. In lieu of an appearance, the victim or represent20 ative of the victim may elect to submit a letter to the Sec21 retary and the parties. 

22 ‘‘(d) SECRETARY PROCEDURES.—The Secretary shall 

23 establish procedures— 

24 ‘‘(1) to inform victims of their rights under this 

25 section; and 


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1 ‘‘(2) for the informal review of any claim of a 

2 denial of such a right. 

3 ‘‘(e) COMMISSION PROCEDURES AND CONSIDER4 ATIONS.—The Commission shall— 

5 ‘‘(1) establish procedures relating to the rights 

6 of victims to be heard in proceedings before the 

7 Commission; and 

8 ‘‘(2) in rendering any decision, provide due con9 sideration to any statement or information provided 

10 by any victim before the Commission. 

11 ‘‘(f) FAMILY LIAISONS.—The Secretary shall des12 ignate at least 1 employee at each area office of the Occu13 pational Safety and Health Administration to serve as a 

14 family liaison to— 

15 ‘‘(1) keep victims informed of the status of in16 vestigations, enforcement actions, and settlement ne17 gotiations; and 

18 ‘‘(2) assist victims in asserting their rights 

19 under this section. 

20 ‘‘(g) DEFINITION.—In this section, the term ‘victim’ 

21 means— 

22 ‘‘(1) an employee, including a former employee, 

23 who has sustained a work-related injury or illness 

24 that is the subject of an inspection or investigation 

25 conducted under section 8; or 


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1 ‘‘(2) a family member (as further defined by 

2 the Secretary) of a victim described in paragraph 

3 (1), if— 

4 ‘‘(A) the victim dies as a result of an inci5 dent that is the subject of an inspection or in6 vestigation conducted under section 8; or 

7 ‘‘(B) the victim sustains a work-related in8 jury or illness that is the subject of an inspec9 tion or investigation conducted under section 8, 

10 and the victim because of incapacity cannot rea11 sonably exercise the rights under this section.’’. 

12 SEC. 309. RIGHT TO CONTEST CITATIONS AND PENALTIES. 

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

14 (1) in the first sentence— 

15 (A) by inserting after ‘‘that he intends to 

16 contest a citation issued under section (9)(a)’’ 

17 the following: ‘‘(or a modification of a citation 

18 issued under this section)’’; 

19 (B) by inserting after ‘‘the issuance of a 

20 citation under section 9(a)’’ the following: ‘‘(in21 cluding a modification of a citation issued 

22 under such section)’’; and 

23 (C) by inserting after ‘‘files a notice with 

24 the Secretary alleging’’ the following: ‘‘that the 

25 citation fails to properly designate the violation 


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1 as serious, willful, or repeated, that the pro2 posed penalty is not adequate, or’’; 

3 (2) by inserting after the first sentence, the fol4 lowing: ‘‘The pendency of a contest before the Com5 mission shall not bar the Secretary from inspecting 

6 a place of employment or from issuing a citation 

7 under section 9.’’; and 

8 (3) in the last sentence— 

9 (A) by inserting ‘‘employers and’’ after 

10 ‘‘Commission shall provide’’; and 

11 (B) by inserting before the period at the 

12 end ‘‘, and notification of any modification of a 

13 citation’’. 

14 SEC. 310. CORRECTION OF SERIOUS, WILLFUL, OR RE15 PEATED VIOLATIONS PENDING CONTEST AND 

16 PROCEDURES FOR A STAY. 

17 Section 10 (29 U.S.C. 659) is amended by adding 

18 at the end the following: 

19 ‘‘(d) CORRECTION OF SERIOUS, WILLFUL, OR RE20 PEATED VIOLATIONS PENDING CONTEST AND PROCE21 DURES FOR A STAY.— 

22 ‘‘(1) PERIOD PERMITTED FOR CORRECTION OF

23 SERIOUS, WILLFUL, OR REPEATED VIOLATIONS.— 

24 For each violation which the Secretary designates as 

25 serious, willful, or repeated, the period permitted for 


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1 the correction of the violation shall begin to run 

2 upon receipt of the citation. 

3 ‘‘(2) FILING OF A MOTION OF CONTEST.—The 

4 filing of a notice of contest by an employer— 

5 ‘‘(A) shall not operate as a stay of the pe6 riod for correction of a violation designated as 

7 serious, willful, or repeated; and 

8 ‘‘(B) may operate as a stay of the period 

9 for correction of a violation not designated by 

10 the Secretary as serious, willful, or repeated. 

11 ‘‘(3) CRITERIA AND RULES OF PROCEDURE FOR

12 STAYS.— 

13 ‘‘(A) MOTION FOR A STAY.—An employer 

14 that receives a citation alleging a violation des15 ignated as serious, willful, or repeated and that 

16 files a notice of contest to the citation asserting 

17 that the time set for abatement of the alleged 

18 violation is unreasonable or challenging the ex19 istence of the alleged violation may file with the 

20 Commission a motion to stay the period for the 

21 abatement of the violation. 

22 ‘‘(B) CRITERIA.—In determining whether 

23 a stay should be issued on the basis of a motion 

24 filed under subparagraph (A), the Commission 


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1 may grant a stay only if the employer has dem2 onstrated— 

3 ‘‘(i) a substantial likelihood of success 

4 on the areas contested under subparagraph 

5 (A); and 

6 ‘‘(ii) that a stay will not adversely af7 fect the health and safety of workers. 

8 ‘‘(C) RULES OF PROCEDURE.—The Com9 mission shall develop rules of procedure for con10 ducting a hearing on a motion filed under sub11 paragraph (A) on an expedited basis. At a min12 imum, such rules shall provide the following: 

13 ‘‘(i) That a hearing before an admin14 istrative law judge shall occur not later 

15 than 15 days following the filing of the 

16 motion for a stay (unless extended at the 

17 request of the employer), and shall provide 

18 for a decision on the motion not later than 

19 15 days following the hearing (unless ex20 tended at the request of the employer). 

21 ‘‘(ii) That a decision of an administra22 tive law judge on a motion for stay is ren23 dered on a timely basis. 

24 ‘‘(iii) That if a party is aggrieved by 

25 a decision issued by an administrative law 


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1 judge regarding the stay, such party has 

2 the right to file an objection with the Com3 mission not later than 5 days after receipt 

4 of the administrative law judge’s decision. 

5 Within 10 days after receipt of the objec6 tion, a Commissioner, if a quorum is seat7 ed pursuant to section 12(f), shall decide 

8 whether to grant review of the objection. 

9 If, within 10 days after receipt of the ob10 jection, no decision is made on whether to 

11 review the decision of the administrative 

12 law judge, the Commission declines to re13 view such decision, or no quorum is seated, 

14 the decision of the administrative law 

15 judge shall become a final order of the 

16 Commission. If the Commission grants re17 view of the objection, the Commission shall 

18 issue a decision regarding the stay not 

19 later than 30 days after receipt of the ob20 jection. If the Commission fails to issue 

21 such decision within 30 days, the decision 

22 of the administrative law judge shall be23 come a final order of the Commission. 

24 ‘‘(iv) For notification to employees or 

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1 quests for such hearings and shall provide 

2 affected employees or representatives of af3 fected employees an opportunity to partici4 pate as parties to such hearings.’’. 

5 SEC. 311. INACTION BY THE REVIEW COMMISSION. 

6 Section 10 (29 U.S.C. 659), as amended by section 

7 310, is further amended by adding at the end the fol8 lowing: 

9 ‘‘(e) INACTION BY REVIEW COMMISSION.— 

10 ‘‘(1) IN GENERAL.—A petition for review of a 

11 decision or order issued by an administrative law 

12 judge that has been filed in a timely manner, but for 

13 which the Commission has failed to issue a final de14 cision and order after 1 year of the acceptance of 

15 such petition because the Commission lacks a 

16 quorum, the decision or order for which such peti17 tion has been filed— 

18 ‘‘(A) shall be deemed a final decision or 

19 order of the Commission; and 

20 ‘‘(B) may be appealed pursuant to section 

21 11(a). 

22 ‘‘(2) EXCEPTION.—Paragraph (1) shall not 

23 apply with respect to motions to stay filed under 

24 subsection (d)(3).’’. 


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1 SEC. 312. CONFORMING AMENDMENTS. 

2 (a) VIOLATIONS DESIGNATED AS SERIOUS, WILL3 FUL, OR REPEATED.—The first sentence of section 10(b) 

4 (29 U.S.C. 659(b)) is amended by inserting ‘‘, with the 

5 exception of violations designated as serious, willful, or re6 peated,’’ after ‘‘(which period shall not begin to run’’. 

7 (b) JUDICIAL REVIEW.—The first sentence of section 

8 11(a) (29 U.S.C. 660(a)) is amended— 

9 (1) by inserting ‘‘(or the failure of the Commis10 sion, including an administrative law judge, to make 

11 a timely decision on a petition for a stay or other 

12 review)’’ after ‘‘an order of the Commission’’; 

13 (2) by striking ‘‘subsection (c)’’ and inserting 

14 ‘‘subsection (c), (d), or (e)’’; and 

15 (3) by inserting ‘‘(or in the case of a petition 

16 from a final Commission order regarding a stay 

17 under section 10(d), 15 days)’’ after ‘‘sixty days’’. 

18 (c) FAILURE TO CORRECT VIOLATIONS.—Section 

19 17(d) (29 U.S.C. 666(d)) is amended to read as follows: 

20 ‘‘(d) Any employer who fails to correct a violation 

21 designated by the Secretary as serious, willful, or repeated 

22 and for which a citation has been issued under section 9(a) 

23 within the period permitted for its correction (and a stay 

24 has not been issued by the Commission under section 

25 10(d)) may be assessed a civil penalty of not more than 

26 $7,000 for each day during which such failure or violation 


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1 continues. Any employer who fails to correct any other vio2 lation for which a citation has been issued under section 

3 9(a) within the period permitted for its correction (which 

4 period shall not begin to run until the date of the final 

5 order of the Commission in the case of any review pro6 ceeding under section 10 initiated by the employer in good 

7 faith and not solely for delay of avoidance of penalties) 

8 may be assessed a civil penalty of not more than $7,000 

9 for each day during which such failure or violation con10 tinues.’’. 

11 SEC. 313. CIVIL PENALTIES. 

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

13 amended— 

14 (1) in subsection (a)— 

15 (A) by striking ‘‘$70,000’’ and inserting 

16 ‘‘$126,749’’; 

17 (B) by striking ‘‘$5,000’’ and inserting 

18 ‘‘$9,054’’; and 

19 (C) by adding at the end the following: ‘‘In 

20 determining whether a violation is repeated, the 

21 Secretary or the Commission shall consider the 

22 employer’s history of violations under this Act 

23 and under State occupational safety and health 

24 plans established under section 18. If such a 

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1 uted to the death of an employee, such civil 

2 penalty amounts shall be increased to not more 

3 than $250,000 for each such violation, but not 

4 less than $50,000 for each such violation, ex5 cept that for an employer with 25 or fewer em6 ployees such penalty shall not be less than 

7 $25,000 for each such violation.’’; 

8 (2) in subsection (b)— 

9 (A) by striking ‘‘$7,000’’ and inserting 

10 ‘‘$12,675’’; and 

11 (B) by adding at the end the following: ‘‘If 

12 such a violation caused or contributed to the 

13 death of an employee, such civil penalty 

14 amounts shall be increased to not more than 

15 $50,000 for each such violation, but not less 

16 than $20,000 for each such violation, except 

17 that for an employer with 25 or fewer employ18 ees such penalty shall not be less than $10,000 

19 for each such violation.’’; 

20 (3) in subsection (c), by striking ‘‘$7,000’’ and 

21 inserting ‘‘$12,675’’; 

22 (4) in subsection (d), as amended by section 

23 312(c), by striking ‘‘$7,000’’ each place it occurs 

24 and inserting ‘‘$12,675’’; 


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1 (5) by redesignating subsections (e) through (i) 

2 as subsections (f) through (j), and subsections (j) 

3 through (l) as subsections (l) through (n) respec4 tively; and 

5 (6) in subsection (j) (as so redesignated) by 

6 striking ‘‘$7,000’’ and inserting ‘‘$12,000’’. 

7 (b) INFLATION ADJUSTMENT.—Section 17, as 

8 amended by subsection (a), is further amended by insert9 ing after subsection (d) the following: 

10 ‘‘(e) Amounts provided under this section for civil 

11 penalties shall be adjusted by the Secretary once each 

12 year, not later than January 15 of such year, to account 

13 for any percentage increase or decrease in the Consumer 

14 Price Index for all urban consumers, and consistent with 

15 the requirements of the Federal Civil Penalties Inflation 

16 Adjustment Act of 1990 (28 U.S.C. 2461 note).’’. 

17 SEC. 314. CRIMINAL PENALTIES. 

18 (a) IN GENERAL.—Section 17 (29 U.S.C. 666), as 

19 amended by section 313, is further amended— 

20 (1) by amending subsection (f) (as redesignated 

21 by section 313(a)(5)) to read as follows: 

22 ‘‘(f)(1) Any employer who knowingly violates any 

23 standard, rule, or order promulgated under section 6 of 

24 this Act, or of any regulation prescribed under this Act, 

25 and that violation caused or significantly contributed to 


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1 the death of any employee, shall, upon conviction, be pun2 ished by a fine in accordance with title 18, United States 

3 Code, or by imprisonment for not more than 10 years, or 

4 both, except that if the conviction is for a violation com5 mitted after a first conviction of such person under this 

6 subsection or subsection (j), punishment shall be by a fine 

7 in accordance with title 18, United States Code, or by im8 prisonment for not more than 20 years, or by both. 

9 ‘‘(2) For the purpose of this subsection, the term ‘em10 ployer’ means, in addition to the definition contained in 

11 section 3 of this Act, any officer or director.’’; 

12 (2) by amending subsection (g) (as redesignated 

13 by section 313(a)(5)) to read as follows: 

14 ‘‘(g) Unless otherwise authorized by this Act, any 

15 person that knowingly gives, causes to give, or attempts 

16 to give or cause to give, advance notice of any inspection 

17 conducted under this Act with the intention of impeding, 

18 interfering with, or adversely affecting the results of such 

19 inspection, shall be fined under title 18, United States 

20 Code, imprisoned for not more than 5 years, or both.’’; 

21 (3) in subsection (h) (as redesignated by section 

22 313(a)(5)), by striking ‘‘fine of not more than 

23 $10,000, or by imprisonment for not more than six 

24 months,’’ and inserting ‘‘fine in accordance with title 


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1 18, United States Code, or by imprisonment for not 

2 more than 5 years,’’; and 

3 (4) by inserting after subsection (j) (as redesig4 nated by section 313(a)(5)) the following: 

5 ‘‘(k)(1) Any employer who knowingly violates any 

6 standard, rule, or order promulgated under section 6, or 

7 any regulation prescribed under this Act, and that viola8 tion caused or significantly contributed to serious bodily 

9 harm to any employee but does not cause death to any 

10 employee, shall, upon conviction, be punished by a fine in 

11 accordance with title 18, United States Code, or by impris12 onment for not more than 5 years, or by both, except that 

13 if the conviction is for a violation committed after a first 

14 conviction of such person under this subsection or sub15 section (f), punishment shall be by a fine in accordance 

16 with title 18, United States Code, or by imprisonment for 

17 not more than 10 years, or by both. 

18 ‘‘(2) For the purpose of this subsection, the term ‘em19 ployer’ means, in addition to the definition contained in 

20 section 3 of this Act, any officer or director. 

21 ‘‘(3) For purposes of this subsection, the term ‘seri22 ous bodily harm’ means bodily injury or illness that in23 volves— 

24 ‘‘(A) a substantial risk of death; 

25 ‘‘(B) protracted unconsciousness; 


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1 ‘‘(C) protracted and obvious physical disfigure2 ment; or 

3 ‘‘(D) protracted loss or impairment, either tem4 porary or permanent, of the function of a bodily 

5 member, organ, or mental faculty.’’. 

6 (b) JURISDICTION FOR PROSECUTION UNDER STATE

7 AND LOCAL CRIMINAL LAWS.—Section 17 (29 U.S.C. 

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

9 by adding at the end the following: 

10 ‘‘(o) Nothing in this Act shall preclude a State or 

11 local law enforcement agency from conducting criminal 

12 prosecutions in accordance with the laws of such State or 

13 locality.’’. 

14 SEC. 315. PREJUDGMENT INTEREST. 

15 Section 17(n) (29 U.S.C. 666(n)) (as redesignated by 

16 section 313(a)(5)) is amended by adding at the end the 

17 following: ‘‘Pre-final order interest on such penalties shall 

18 begin to accrue on the date the party contests a citation 

19 issued under this Act, and shall end upon the issuance 

20 of the final order. Such pre-final order interest shall be 

21 calculated at the current underpayment rate determined 

22 by the Secretary of the Treasury pursuant to section 6621 

23 of the Internal Revenue Code of 1986, and shall be com24 pounded daily. Post-final order interest shall begin to ac25 crue 30 days after the date a final order of the CommisVerDate Sep 11 2014 00:43 Apr 05, 2018 Jkt 079200 PO 00000 Frm 00044 Fmt 6652 Sfmt 6201 E:\BILLS\S2621.IS S2621

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1 sion or the court is issued, and shall be charged at the 

2 rate of 8 percent per year.’’. 

3 TITLE IV—STATE PLANS 

4 SEC. 401. CONCURRENT ENFORCEMENT AUTHORITY AND 

5 REVIEW OF STATE OCCUPATIONAL SAFETY 

6 AND HEALTH PLANS. 

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

8 (1) by amending subsection (f) to read as fol9 lows: 

10 ‘‘(f)(1) The Secretary shall, on the basis of reports 

11 submitted by the State agency and the Secretary’s own 

12 inspections, make a continuing evaluation of the manner 

13 in which each State that has a plan approved under this 

14 section is carrying out such plan. Such evaluation shall 

15 include an assessment of whether the State continues to 

16 meet the requirements of subsection (c) of this section and 

17 any other criteria or indices of effectiveness specified by 

18 the Secretary in regulations. Whenever the Secretary 

19 finds, on the basis of such evaluation, that in the adminis20 tration of the State plan there is a failure to comply sub21 stantially with any provision of the State plan (or any as22 surance contained therein), the Secretary shall make an 

23 initial determination of whether the failure is of such a 

24 nature that the plan should be withdrawn or whether the 

25 failure is of such a nature that the State should be given 


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1 the opportunity to remedy the deficiencies, and provide no2 tice of the Secretary’s findings and initial determination. 

3 ‘‘(2) If the Secretary makes an initial determination 

4 to reassert and exercise concurrent enforcement authority 

5 while the State is given an opportunity to remedy the defi6 ciencies, the Secretary shall afford the State an oppor7 tunity for a public hearing within 15 days of such request, 

8 provided that such request is made not later than 10 days 

9 after the Secretary’s notice to the State. The Secretary 

10 shall review and consider the testimony, evidence, or writ11 ten comments, and not later than 30 days following such 

12 hearing, make a determination to affirm, reverse, or mod13 ify the Secretary’s initial determination to reassert and ex14 ercise concurrent enforcement authority under sections 8, 

15 9, 10, 13, and 17 with respect to standards promulgated 

16 under section 6 and obligations under section 5(a). Fol17 lowing such a determination by the Secretary, or in the 

18 event that the State does not request a hearing within the 

19 timeframe set forth in this paragraph, the Secretary may 

20 reassert and exercise such concurrent enforcement author21 ity, while a final determination is pending under para22 graph (3) or until the Secretary has determined that the 

23 State has remedied the deficiencies as provided under 

24 paragraph (4). Such determination shall be published in 

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1 section (g) shall not apply to a determination by the Sec2 retary to reassert and exercise such concurrent enforce3 ment authority. 

4 ‘‘(3) If the Secretary makes an initial determination 

5 that the plan should be withdrawn, the Secretary shall 

6 provide due notice and the opportunity for a hearing. If 

7 based on the evaluation, comments, and evidence, the Sec8 retary makes a final determination that there is a failure 

9 to comply substantially with any provision of the State 

10 plan (or any assurance contained therein), the Secretary 

11 shall notify the State agency of the withdrawal of approval 

12 of such plan and upon receipt of such notice such plan 

13 shall cease to be in effect, but the State may retain juris14 diction in any case commenced before the withdrawal of 

15 the plan in order to enforce standards under the plan 

16 whenever the issues involved do not relate to the reasons 

17 for the withdrawal of the plan. 

18 ‘‘(4) If the Secretary makes a determination that the 

19 State should be provided the opportunity to remedy the 

20 deficiencies, the Secretary shall provide the State an op21 portunity to respond to the Secretary’s findings and the 

22 opportunity to remedy such deficiencies within a time pe23 riod established by the Secretary, not to exceed 1 year. 

24 The Secretary may extend and revise the time period to 

25 remedy such deficiencies, if the State’s legislature is not 


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1 in session during this 1-year time period, or if the State 

2 demonstrates that it is not feasible to correct the defi3 ciencies in the time period set by the Secretary, and the 

4 State has a plan to correct the deficiencies within a rea5 sonable time period. If the Secretary finds that the State 

6 agency has failed to remedy such deficiencies within the 

7 time period specified by the Secretary and that the State 

8 plan continues to fail to comply substantially with a provi9 sion of the State plan, the Secretary shall withdraw the 

10 State plan as provided for in paragraph (3).’’; and 

11 (2) by adding at the end the following new sub12 section: 

13 ‘‘(i) Not later than 18 months after the date of enact14 ment of this subsection, and again 5 years thereafter, the 

15 Comptroller General of the United States shall complete 

16 and issue a review of the effectiveness of State plans to 

17 develop and enforce safety and health standards to deter18 mine if they are at least as effective as the Federal pro19 gram and to evaluate whether the Secretary’s oversight 

20 of State plans is effective. The Comptroller General’s eval21 uation shall assess— 

22 ‘‘(1) the effectiveness of the Secretary’s over23 sight of State plans, including the indices of effec24 tiveness used by the Secretary; 


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1 ‘‘(2) whether the Secretary’s investigations in 

2 response to Complaints About State Program Ad3 ministration (CASPA) are adequate, whether signifi4 cant policy issues have been identified by head5 quarters, and whether corrective actions are fully 

6 implemented by each State; 

7 ‘‘(3) whether the formula for the distribution of 

8 funds described in section 23(g) to State programs 

9 is fair and adequate; and 

10 ‘‘(4) whether State plans are as effective as the 

11 Federal program in preventing occupational injuries, 

12 illnesses and deaths, and investigating discrimina13 tion complaints, through an evaluation of at least 20 

14 percent of approved State plans, and which shall 

15 cover— 

16 ‘‘(A) enforcement effectiveness, including 

17 handling of fatalities, serious incidents and 

18 complaints, compliance with inspection proce19 dures, hazard recognition, verification of abate20 ment, violation classification, citation and pen21 alty issuance, including appropriate use of will22 ful and repeat citations, and employee involve23 ment; 

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1 vate and public sector establishments, and 

2 whether the State targets the highest hazard 

3 private sector worksites and facilities in that 

4 State; 

5 ‘‘(C) budget and staffing, including wheth6 er the State is providing adequate budget re7 sources to hire, train, and retain sufficient 

8 numbers of qualified staff, including timely fill9 ing of vacancies; 

10 ‘‘(D) administrative review, including the 

11 quality of decisions, consistency with Federal 

12 precedence, transparency of proceedings, avail13 ability of decisions and records to the public, 

14 adequacy of State defense, and whether the 

15 State appropriately appeals adverse decisions; 

16 ‘‘(E) anti-discrimination, including whether 

17 discrimination complaints are processed in a 

18 timely manner, whether supervisors and inves19 tigators are properly trained to investigate dis20 crimination complaints, whether a case file re21 view indicates merit cases are properly identi22 fied consistent with Federal policy and proce23 dure, whether employees are notified of their 

24 rights, and whether there is an effective process 


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1 for employees to appeal the dismissal of a com2 plaint; 

3 ‘‘(F) program administration, including 

4 whether the State’s standards and policies are 

5 at least as effective as the Federal program and 

6 are updated in a timely manner, and whether 

7 National Emphasis Programs that are applica8 ble in such States are adopted and implemented 

9 in a manner that is at least as effective as the 

10 Federal program; 

11 ‘‘(G) whether the State plan satisfies the 

12 requirements for approval set forth in this sec13 tion and its implementing regulations; and 

14 ‘‘(H) other such factors identified by the 

15 Comptroller General, or as requested by the 

16 Committee on Education and the Workforce of 

17 the House of Representatives or the Committee 

18 on Health, Education, Labor, and Pensions of 

19 the Senate.’’. 

20 SEC. 402. EVALUATION OF REPEATED VIOLATIONS IN 

21 STATE PLANS. 

22 Section 18(c) (29 U.S.C. 668(c)) is amended— 

23 (1) in paragraph (7), by striking ‘‘, and’’ and 

24 inserting a comma; 


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1 (2) in paragraph (8), by striking the period at 

2 the end and inserting ‘‘, and’’; and 

3 (3) by adding at the end the following new 

4 paragraph: 

5 ‘‘(9) provides that in determining whether a 

6 violation is repeated, the State shall consider the 

7 employer’s violations within the State, in conjunction 

8 with the employer’s history of violations under other 

9 States’ occupational safety and health plans ap10 proved by the Secretary and the employer’s history 

11 of violations in those States where the Secretary has 

12 jurisdiction under this Act, in a manner that is at 

13 least as effective as provided under section 17.’’. 

14 TITLE V—NATIONAL INSTITUTE 

15 FOR OCCUPATIONAL SAFETY 

16 AND HEALTH 

17 SEC. 501. HEALTH HAZARD EVALUATIONS BY THE NA18 TIONAL INSTITUTE FOR OCCUPATIONAL 

19 SAFETY AND HEALTH. 

20 Section 20(a)(6) (29 U.S.C. 669(a)(6)) is amended 

21 by striking the second sentence and inserting the fol22 lowing: ‘‘The Secretary shall determine following a written 

23 request by any employer, authorized representative of cur24 rent or former employees, physician, other Federal agency, 

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1 sonable particularity the grounds on which the request is 

2 made, whether any substance normally found in the place 

3 of employment has potentially toxic effects in such con4 centrations as used or found, or whether any physical 

5 agents, equipment, or working condition found or used has 

6 potentially hazardous effects. The Secretary shall submit 

7 such determination both to employers and affected em8 ployees as soon as possible.’’. 

9 TITLE VI—EFFECTIVE DATE 

10 SEC. 601. EFFECTIVE DATE. 

11 (a) GENERAL RULE.—Except as provided for in sub12 section (b), this Act and the amendments made by this 

13 Act shall take effect not later than 90 days after the date 

14 of the enactment of this Act. 

15 (b) EXCEPTION FOR STATES AND POLITICAL SUB16 DIVISIONS.—The following are exceptions to the effective 

17 date described in subsection (a): 

18 (1) A State that has a State plan approved 

19 under section 18 of the Occupational Safety and 

20 Health Act of 1970 (29 U.S.C. 667) shall amend its 

21 State plan to conform with the requirements of this 

22 Act and the amendments made by this Act not later 

23 than 12 months after the date of the enactment of 

24 this Act. The Secretary of Labor may extend the pe25 riod for a State to make such amendments to its 


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1 State plan by not more than 12 months, if the 

2 State’s legislature is not in session during the 12- 

3 month period beginning with the date of the enact4 ment of this Act. Such amendments to the State 

5 plan shall take effect not later than 90 days after 

6 the adoption of such amendments by such State. 

7 (2) This Act and the amendments made by this 

8 Act shall take effect not later than 36 months after 

9 the date of the enactment of this Act with respect 

10 to a workplace of a State, or a political subdivision 

11 of a State, that does not have a State plan approved 

12 under such section 18. 

Æ 


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