Calendar No. 353

106TH CONGRESS

1ST SESSION S. 385

[Report No. 106–202]

A BILL

To amend the Occupational Safety and Health Act

of 1970 to further improve the safety and healthof working environments, and for other purposes.

OCTOBER 28, 1999

Reported with amendments
II

Calendar No. 353

106TH CONGRESS

1ST SESSION S. 385

[Report No. 106–202]

To amend the Occupational Safety and Health Act of 1970 to further improve

the safety and health of working environments, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 6, 1999

Mr. ENZI (for himself, Mr. JEFFORDS, Mr. HUTCHINSON, Mr. HAGEL, Mr.

SESSIONS, Mr. FRIST, Mr. BROWNBACK, Mr. CRAPO, and Mr. BUNNING)

introduced the following bill; which was read twice and referred to the

Committee on Health, Education, Labor, and Pensions

OCTOBER 28, 1999

Reported by Mr. JEFFORDS, with amendments

[Omit the part struck through and insert the part printed in italic]

A BILL

To amend the Occupational Safety and Health Act of 1970

to further improve the safety and health of working

environments, 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,
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1 SECTION 1. SHORT TITLE; REFERENCE.

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

3 ‘‘Safety Advancement for Employees Act of 1999’’ or the

4 ‘‘SAFE Act’’.

5 (b) REFERENCE.—Whenever in this Act an amend6 ment or repeal is expressed in terms of an amendment

7 to, or repeal of, a section or other provision, the reference

8 shall be considered to be made to a section or other provi9 sion of the Occupational Safety and Health Act of 1970

10 (29 U.S.C. 651 et seq.).

11 SEC. 2. PURPOSE.

12 Section 2(b) of the Act (29 U.S.C. 651(b)) is

13 amended—

14 (1) in paragraph (13), by striking the period

15 and inserting ‘‘; and’’; and

16 (2) by adding at the end the following:

17 ‘‘(14) by increasing the joint cooperation of em18 ployers, employees, and the Secretary of Labor in

19 the effort to ensure safe and healthful working con20 ditions for employees.’’.

21 SEC. 3. THIRD PARTY CONSULTATION SERVICES PROGRAM.

22 (a) PROGRAM.—The Act (29 U.S.C. 651 et seq.) is

23 amended by inserting after section 8 the following:

24 ‘‘SEC. 8A. THIRD PARTY CONSULTATION SERVICES PRO25 GRAM.

26 ‘‘(a) PURPOSE.—Recognizing that—
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1 ‘‘(1) employee safety is of paramount concern;

2 ‘‘(2) employers are overburdened by regulations

3 and are unable to read through, understand and ef4 fectively comply with the voluminous requirements of

5 this Act; and

6 ‘‘(3) the Secretary is unable to individually sat7 isfy the compliance needs of each employer and em8 ployee within its jurisdiction;

9 it is

10 ‘‘(a) PURPOSE.—It is the purpose of this section to

11 encourage employers to conduct voluntary safety and

12 health audits using the expertise of qualified safety and

13 health consultants and to proactively seek individualized

14 solutions to workplace safety and health concerns.

15 ‘‘(b) ESTABLISHMENT OF PROGRAM.—

16 ‘‘(1) IN GENERAL.—Not later than 18 months

17 after the date of enactment of this section, the Sec18 retary, in consultation with the advisory committee

19 established under section 7(d), shall establish and

20 implement, by regulation, a program that qualifies

21 individuals to provide consultation services to em22 ployers to assist employers in the identification and

23 correction of safety and health hazards in the work24 places of employers.
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1 ‘‘(2) ELIGIBILITY.—The following individuals

2 shall be eligible to be qualified under the program

3 under paragraph (1) as certified safety and health

4 consultants:

5 ‘‘(A) An individual who is licensed by a

6 State authority as a physician, industrial hy7 gienist, professional engineer, safety engineer,

8 safety professional, or occupational registered

9 nurse.

10 ‘‘(B) An individual who has been employed

11 as an inspector for a State plan State or as a

12 Federal occupational safety and health inspec13 tor for not less than a 5-year period.

14 ‘‘(C) An individual who is qualified in an

15 occupational health or safety field by an organi16 zation whose program has been accredited by a

17 nationally recognized private accreditation orga18 nization or by the Secretary.

19 ‘‘(D) An individual who has not less than

20 10 years expertise in workplace safety and

21 health.

22 ‘‘(D) (E) Other individuals determined to

23 be qualified by the Secretary.

24 ‘‘(3) GEOGRAPHICAL SCOPE OF CONSULTATION

25 SERVICES.—A consultant qualified under the pro-
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1 gram under paragraph (1) may provide consultation

2 services in any State.

3 ‘‘(4) LIMITATION BASED ON EXPERTISE.—A

4 consultant qualified under the program under para5 graph (1) may only provide consultation services to

6 an employer with respect to a worksite if the work

7 performed at that worksite coincides with the par8 ticular expertise of the individual.

9 ‘‘(c) SAFETY AND HEALTH REGISTRY.—The Sec10 retary shall develop and maintain a registry that includes

11 all consultants that are qualified under the program under

12 subsection (b)(1) to provide the consultation services de13 scribed in subsection (b) and shall publish and make such

14 registry readily available to the general public.

15 ‘‘(d) DISCIPLINARY ACTIONS.—The Secretary may

16 revoke the status of a consultant qualified under sub17 section (b), or the participation of an employer under sub18 section (b) in the third party consultation program, if the

19 Secretary determines that the consultant or employer—

20 ‘‘(1) has failed to meet the requirements of the

21 program; or

22 ‘‘(2) has committed malfeasance, gross neg23 ligence, collusion or fraud in connection with any

24 consultation services provided by the qualified con25 sultant.
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1 ‘‘(e) PROGRAM REQUIREMENTS.—

2 ‘‘(1) FULL SERVICE CONSULTATION.—The con3 sultation services described in subsection (b), and

4 provided by a consultant qualified under the pro5 gram under subsection (b)(1), shall include an eval6 uation of the workplace of an employer to determine

7 if the employer is in compliance with the require8 ments of this Act, including any regulations promul9 gated pursuant to this Act. Employers electing to

10 participate in such program shall contract with a

11 consultant qualified under subsection (b)(2) to per12 form a full service visit and consultation covering

13 the employer’s establishment, including a complete

14 safety and health program review. Following the

15 guidance as specified in this section, the consultant

16 shall discuss with the employer the elements of an

17 effective program.

18 ‘‘(2) CONSULTATION REPORT.—

19 ‘‘(A) IN GENERAL.—After a consultant

20 conducts a comprehensive survey of an em21 ployer under a program under this section, the

22 consultant shall prepare and submit to the em23 ployer a written report that includes an action

24 plan identifying any violations of this Act, and

25 any appropriate corrective measures to address
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1 the violations that are identified using an effec2 tive safety and health program.

3 ‘‘(B) ELEMENTS.—A consultation report

4 shall contain each of the following elements.

5 ‘‘(i) ACTION PLAN.—

6 ‘‘(I) IN GENERAL.—An action

7 plan under subparagraph (A) shall be

8 developed in consultation with the em9 ployer as part of the initial com10 prehensive survey. The consultant and

11 the employer shall jointly use the on12 site time in the initial visit to the em13 ployer’s place of business to agree on

14 the terms of the action plan and the

15 time frames for achieving specific

16 items.

17 ‘‘(II) REQUIREMENTS.—The ac18 tion plan shall outline the specific

19 steps that must be accomplished by

20 the employer prior to receiving a cer21 tificate of compliance. The action plan

22 shall address in detail—

23 ‘‘(aa) the employer’s correc24 tion of all identified safety and
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1 health hazards, with applicable

2 time frames;

3 ‘‘(bb) the steps necessary for

4 the employer to implement an ef5 fective safety and health pro6 gram, with applicable time

7 frames; and

8 ‘‘(cc) a statement of the em9 ployer’s commitment to work

10 with the consultation project to

11 achieve a certificate of compli12 ance.

13 ‘‘(ii) SAFETY AND HEALTH PRO14 GRAM.—An employer electing to partici15 pate in a program under this section shall

16 establish a safety and health program to

17 manage workplace safety and health to re18 duce injuries, illnesses and fatalities that

19 complies with paragraph (3). Such safety

20 and health program shall be appropriate to

21 the conditions of the workplace involved.

22 ‘‘(3) REQUIREMENTS FOR SAFETY AND HEALTH

23 PROGRAM.—

24 ‘‘(A) WRITTEN PROGRAM.—An employer

25 electing to participate shall maintain a written
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1 safety and health program that contains poli2 cies, procedures, and practices to recognize and

3 protect their employees from occupational safe4 ty and health hazards. Such procedures shall

5 include provisions for the identification, evalua6 tion and prevention or control of workplace haz7 ards.

8 ‘‘(B) MAJOR ELEMENTS.—A safety and

9 health program shall include the following ele10 ments, and may include other elements as nec11 essary to the specific worksite involved and as

12 determined appropriate by the qualified consult13 ant and employer:

14 ‘‘(i) EMPLOYER COMMITMENT AND

15 EMPLOYEE INVOLVEMENT.—

16 ‘‘(I) IN GENERAL.—The existence

17 of both management leadership and

18 employee participation must be dem19 onstrated in accordance with sub20 clauses (II) and (III).

21 ‘‘(II) MANAGEMENT LEADER22 SHIP.—To make a demonstration of

23 management leadership under this

24 subclause, the employer shall—
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1 ‘‘(aa) set a clear worksite

2 safety and health policy that em3 ployees can fully understand;

4 ‘‘(bb) set and communicate

5 clear goals and objectives with

6 the involvement of employees;

7 ‘‘(cc) provide essential safety

8 and health leadership in tangible

9 and recognizable ways;

10 ‘‘(dd) set positive safety and

11 health examples; and

12 ‘‘(ee) perform comprehensive

13 reviews of safety and health pro14 grams for quality assurance

15 using a process which promotes

16 continuous correction.

17 ‘‘(III) EMPLOYEE PARTICIPA18 TION.—With respect to employee par19 ticipation, the employer shall dem20 onstrate a commitment to working to

21 develop a comprehensive, written and

22 operational safety and health program

23 that involves employees in significant

24 ways that affect safety and health. In
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1 making such a demonstration, the em2 ployer shall—

3 ‘‘(aa) provide for employee

4 participation in actively identi5 fying and resolving safety and

6 health issues in tangible ways

7 that employees can clearly under8 stand;

9 ‘‘(bb) assign safety and

10 health responsibilities in such a

11 way that employees can under12 stand clearly what is expected of

13 them;

14 ‘‘(cc) provide employees with

15 the necessary authority and re16 sources to meet their safety and

17 health responsibilities; and

18 ‘‘(dd) provide that safety

19 and health performance for man20 agers, supervisors and employees

21 be measured in tangible ways.

22 ‘‘(ii) WORKPLACE ANALYSIS.—The

23 employer, in consultation with the consult24 ant, shall systematically identify and assess

25 hazards in the following ways:
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1 ‘‘(I) Conduct corrective action

2 and regular expert surveys to update

3 hazard inventories.

4 ‘‘(II) Have competent personnel

5 review every planned or new facility,

6 process material, or equipment.

7 ‘‘(III) Train all employees and

8 supervisors, conduct routine joint in9 spections, and correct items identified.

10 ‘‘(IV) Establish a way for em11 ployees to report hazards and provide

12 prompt responses to such reports.

13 ‘‘(V) Investigate worksite acci14 dents and near accidents.

15 ‘‘(VI) Provide employees with the

16 necessary information regarding inci17 dent trends, causes and means of pre18 vention.

19 ‘‘(iii) HAZARD PREVENTION.—The

20 employer, in consultation with the consult21 ant, shall—

22 ‘‘(I) engage in timely hazard con23 trol, working to ensure that hazard

24 controls are fully in place and commu25 nicated to employees, with emphasis
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1 on engineering controls and enforcing

2 safe work procedures;

3 ‘‘(II) maintain equipment using

4 operators who are trained to recognize

5 maintenance needs and perform or di6 rect timely maintenance;

7 ‘‘(III) provide training on emer8 gency planning and preparation,

9 working to ensure that all personnel

10 know immediately how to respond as

11 a result of effective planning, training,

12 and drills;

13 ‘‘(IV) equip facilities for emer14 gencies with all systems and equip15 ment in place and regularly tested so

16 that all employees know how to com17 municate during emergencies and how

18 to use equipment; and

19 ‘‘(V) provide for emergency med20 ical situations using employees who

21 are fully trained in emergency medi22 cine.

23 ‘‘(iv) SAFETY AND HEALTH TRAIN24 ING.—The employer, in consultation with

25 the consultant, shall—
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1 ‘‘(I) involve employees in hazard

2 assessment, development and delivery

3 of training;

4 ‘‘(II) actively involve supervisors

5 in worksite analysis by empowering

6 them to ensure physical protections,

7 reinforce training, enforce discipline,

8 and explain work procedures; and

9 ‘‘(III) provide training in safety

10 and health management to managers.

11 ‘‘(4) REINSPECTION.—At a time agreed to by

12 the employer and the consultant, the consultant may

13 reinspect the workplace of the employer to verify

14 that the required elements in the consultation report

15 have been satisfied. If such requirements have been

16 satisfied, the employer shall be provided with a cer17 tificate of compliance for that workplace by the

18 qualified consultant.

19 ‘‘(f) EXEMPTION FROM CIVIL PENALTIES FOR COM20 PLIANCE.—

21 ‘‘(1) IN GENERAL.—If an employer enters into

22 a contract with an individual qualified under the

23 program under this section, to provide consultation

24 services described in subsection (b), and receives a

25 certificate of compliance under subsection (e)(4), the
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1 employer shall be exempt from the assessment of

2 any civil penalty under section 17 for a period of 1

3 year after the date on which the employer receives

4 such certificate.

5 ‘‘(2) EXCEPTIONS.—An employer shall not be

6 exempt under paragraph (1)—

7 ‘‘(A) if the employer has not made a good

8 faith effort to remain in compliance as required

9 under the certificate of compliance; or

10 ‘‘(B) to the extent that there has been a

11 fundamental change in the hazards of the work12 place.

13 ‘‘(g) RIGHT TO INSPECT.—Nothing in this section

14 shall be construed to affect the rights of the Secretary to

15 inspect and investigate worksites covered by a certificate

16 of compliance.

17 ‘‘(h) RENEWAL REQUIREMENTS.—An employer that

18 is granted a certificate of compliance under this section

19 may receive a 1 year renewal of the certificate if the fol20 lowing elements are satisfied:

21 ‘‘(1) A qualified consultant shall conduct a com22 plete onsite safety and health survey to ensure that

23 the safety and health program has been effectively

24 maintained or improved, workplace hazards are
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1 under control, and elements of the safety and health

2 program are operating effectively.

3 ‘‘(2) The consultant, in an onsite visit by the

4 consultant, has determined that the program re5 quirements have been complied with and the health

6 and safety program has been operating effectively.

7 ‘‘(i) NON-FIXED WORKSITES.—With respect to em8 ployer worksites that do not have a fixed location, a certifi9 cate of compliance shall only apply to that worksite which

10 satisfies the criteria under this section and such certificate

11 shall not be portable to any other worksite. This section

12 shall not apply to service establishments that utilize essen13 tially the same work equipment at each non-fixed work14 site.’’.

15 SEC. 4. ESTABLISHMENT OF SPECIAL ADVISORY COM16 MITTEE.

17 Section 7 of the Act (29 U.S.C. 656) is amended by

18 adding at the end the following:

19 ‘‘(d)(1) Not later than 6 months after the date of

20 enactment of this subsection, the Secretary shall establish

21 an advisory committee (pursuant to the Federal Advisory

22 Committee Act (5 U.S.C. App.)) to carry out the duties

23 described in paragraph (3).

24 ‘‘(2) The advisory committee shall be composed of—

25 ‘‘(A) 3 members who are employees;
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1 ‘‘(B) 3 members who are employers;

2 ‘‘(C) 2 members who are members of the gen3 eral public; and

4 ‘‘(D) 1 member who is a State official from a

5 State plan State.

6 Each member of the advisory committee shall have exper7 tise in workplace safety and health as demonstrated by

8 the educational background of the member.

9 ‘‘(3) The advisory committee shall advise and make

10 recommendations to the Secretary with respect to the es11 tablishment and implementation of a consultation services

12 program under section 8A.’’.

13 SEC. 5. CONTINUING EDUCATION AND PROFESSIONAL CER14 TIFICATION FOR CERTAIN OCCUPATIONAL

15 SAFETY AND HEALTH ADMINISTRATION PER16 SONNEL.

17 Section 8 of the Act (29 U.S.C. 657) is amended by

18 adding at the end the following:

19 ‘‘(h) (i) Any Federal employee responsible for enforc20 ing this Act shall, not later than 2 years after the date

21 of enactment of this subsection or 2 years after the initial

22 employment of the employee involved, meet the eligibility

23 requirements prescribed under subsection (b)(2) of section

24 8A.
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1 ‘‘(i) (j) The Secretary shall ensure that any Federal

2 employee responsible for enforcing this Act who carries

3 out inspections or investigations under this section, receive

4 professional education and training at least every 5 years

5 as prescribed by the Secretary.’’.

6 SEC. 6. EXPANDED INSPECTION METHODS.

7 (a) PURPOSE.—It is the purpose of this section to

8 empower the Secretary of Labor to achieve increased em9 ployer compliance by using, at the Secretary’s discretion,

10 more efficient and effective means for conducting inspec11 tions.

12 (b) GENERAL.—Section 8(f) of the Act (29 U.S.C.

13 657(f) is amended—

14 (1) by adding at the end the following:

15 ‘‘(3) The Secretary or an authorized representative

16 of the Secretary may, as a method of investigating an al17 leged violation or danger under this subsection, attempt,

18 if feasible, to contact an employer by telephone, facsimile,

19 or other appropriate methods to determine whether—

20 ‘‘(A) the employer has taken corrective actions

21 with respect to the alleged violation or danger; or

22 ‘‘(B) there are reasonable grounds to believe

23 that a hazard exists.

24 ‘‘(4) The Secretary is not required to conduct an in25 spection under this subsection if the Secretary determines
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1 that a request for an inspection was made for reasons

2 other than the safety and health of the employees of an

3 employer or that the employees of an employer are not

4 at risk.’’.

5 SEC. 7. WORKSITE-SPECIFIC COMPLIANCE METHODS.

6 Section 9 of the Act (29 U.S.C. 658) is amended by

7 adding at the end the following:

8 ‘‘(d) A citation issued under subsection (a) to an em9 ployer who violates section 5, any standard, rule, or order

10 promulgated pursuant to section 6, or any other regulation

11 promulgated under this Act shall be vacated if such em12 ployer demonstrates that the employees of such employer

13 were protected by alternative methods that are equally or

14 more protective of the safety and health of the employees

15 than the methods required by such standard, rule, order,

16 or regulation in the factual circumstances underlying the

17 citation.

18 ‘‘(e) Subsection (d) shall not be construed to elimi19 nate or modify other defenses that may exist to any cita20 tion.’’.

21 SEC. 8. TECHNICAL ASSISTANCE PROGRAM.

22 (a) IN GENERAL.—Section 21(c) of the Act (29

23 U.S.C. 670(c)) is amended—

24 (1) by striking ‘‘(c) The’’ and inserting ‘‘(c)(1)

25 The’’;
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1 (2) by striking ‘‘(1) provide’’ and inserting ‘‘(A)

2 provide’’;

3 (3) by striking ‘‘(2) consult’’ and inserting ‘‘(B)

4 consult’’; and

5 (4) by adding at the end the following:

6 ‘‘(2)(A) The Secretary shall, through the authority

7 granted under section 7(c) and paragraph (1), enter into

8 cooperative agreements with States for the provision of

9 consultation services by such States to employers con10 cerning the provision of safe and healthful working condi11 tions.

12 ‘‘(B)(i) Except as provided in clause (ii), the Sec13 retary shall reimburse a State that enters into a coopera14 tive agreement under subparagraph (A) in an amount that

15 equals 90 percent of the costs incurred by the State for

16 the provision of consultation services under such agree17 ment.

18 ‘‘(ii) A State shall be reimbursed by the Secretary

19 for 90 percent of the costs incurred by the State for the

20 provision of—

21 ‘‘(I) training approved by the Secretary for

22 State personnel operating under a cooperative agree23 ment; and

24 ‘‘(II) specified out-of-State travel expenses in25 curred by such personnel.
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1 ‘‘(iii) A reimbursement paid to a State under this

2 subparagraph shall be limited to costs incurred by such

3 State for the provision of consultation services under this

4 paragraph and the costs described in clause (ii).’’.

5 (b) PILOT PROGRAM.—Section 21 of the Act (29

6 U.S.C. 670) is amended by adding at the end the fol7 lowing:

8 ‘‘(d) (e)(1) Not later than 90 days after the date of

9 enactment of this subsection, the Secretary shall establish

10 and carry out a pilot program in 3 States to provide expe11 dited consultation services, with respect to the provision

12 of safe and healthful working conditions, to employers that

13 are small businesses (as the term is defined by the Admin14 istrator of the Small Business Administration). The Sec15 retary shall carry out the program for a period of not to

16 exceed 2 years.

17 ‘‘(2) The Secretary shall provide consultation services

18 under paragraph (1) not later than 4 weeks after the date

19 on which the Secretary receives a request from an em20 ployer.

21 ‘‘(3) The Secretary may impose a nominal fee to an

22 employer requesting consultation services under para23 graph (1). The fee shall be in an amount determined by

24 the Secretary. Employers paying a fee shall receive pri25 ority consultation services by the Secretary.
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1 ‘‘(4) In lieu of issuing a citation under section 9 to

2 an employer for a violation found by the Secretary during

3 a consultation under paragraph (1), the Secretary shall

4 permit the employer to carry out corrective measures to

5 correct the conditions causing the violation. The Secretary

6 shall conduct not more than 2 visits to the workplace of

7 the employer to determine if the employer has carried out

8 the corrective measures. The Secretary shall issue a cita9 tion as prescribed under section 5 if, after such visits, the

10 employer has failed to carry out the corrective measures.

11 ‘‘(5) Not later than 90 days after the termination of

12 the program under paragraph (1), the Secretary shall pre13 pare and submit a report to the appropriate committees

14 of Congress that contains an evaluation of the implemen15 tation of the pilot program.’’.

16 SEC. 9. VOLUNTARY PROTECTION PROGRAMS.

17 (a) COOPERATIVE AGREEMENTS.—The Secretary of

18 Labor shall establish cooperative agreements with employ19 ers to encourage the establishment of comprehensive safe20 ty and health management systems that include—

21 (1) requirements for systematic assessment of

22 hazards;

23 (2) comprehensive hazard prevention, mitiga24 tion, and control programs;
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1 (3) active and meaningful management and em2 ployee participation in the voluntary program de3 scribed in subsection (b); and

4 (4) employee safety and health training.

5 (b) VOLUNTARY PROTECTION PROGRAM.—

6 (1) IN GENERAL.—The Secretary of Labor shall

7 establish and carry out a voluntary protection pro8 gram (consistent with subsection (a)) to encourage

9 and recognize the achievement of excellence in both

10 the technical and managerial protection of employees

11 from occupational hazards.

12 (2) PROGRAM REQUIREMENT.—The voluntary

13 protection program shall include the following:

14 (A) APPLICATION.—Employers who volun15 teer under the program shall be required to

16 submit an application to the Secretary of Labor

17 demonstrating that the worksite with respect to

18 which the application is made meets such re19 quirements as the Secretary of Labor may re20 quire for participation in the program.

21 (B) ONSITE EVALUATIONS.—There shall

22 be onsite evaluations by representatives of the

23 Secretary of Labor to ensure a high level of

24 protection of employees. The onsite visits shall

25 not result in enforcement of citations under the
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1 Occupational Safety and Health Act of 1970

2 (29 U.S.C. 651 et seq.).

3 (C) INFORMATION.—Employers who are

4 approved by the Secretary of Labor for partici5 pation in the program shall assure the Sec6 retary of Labor that information about the

7 safety and health program of the employers

8 shall be made readily available to the Secretary

9 of Labor to share with employees.

10 (D) REEVALUATIONS.—Periodic reevalua11 tions by the Secretary of Labor of the employ12 ers shall be required for continued participation

13 in the program.

14 (3) EXEMPTIONS.—A site with respect to which

15 a program has been approved shall, during partici16 pation in the program be exempt from inspections or

17 investigations and certain paperwork requirements

18 to be determined by the Secretary of Labor, except

19 that this paragraph shall not apply to inspections or

20 investigations arising from employee complaints, fa21 talities, catastrophes, or significant toxic releases.

22 (4) INCREASED SMALL BUSINESS PARTICIPA23 TION.—The Secretary of Labor shall establish and

24 implement, by regulation, a program to increase par25 ticipation by small businesses (as the term is defined
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1 by the Administrator of the Small Business Admin2 istration) in the voluntary protection program

3 through outreach and assistance initiatives and de4 veloping program requirements that address the

5 needs of small businesses.

6 SEC. 10. PREVENTION OF ALCOHOL AND SUBSTANCE

7 ABUSE.

8 The Act (29 U.S.C. 651 et seq.) is amended by add9 ing at the end the following:

10 ‘‘SEC. 35. ALCOHOL AND SUBSTANCE ABUSE TESTING.

11 ‘‘(a) PROGRAM PURPOSE.—In order to secure a safe

12 workplace, employers may establish and carry out an alco13 hol and substance abuse testing program in accordance

14 with subsection (b).

15 ‘‘(b) FEDERAL GUIDELINES.—

16 ‘‘(1) REQUIREMENTS.—An alcohol and sub17 stance abuse testing program described in subsection

18 (a) shall meet the following requirements:

19 ‘‘(A) SUBSTANCE ABUSE.—A substance

20 abuse testing program shall permit the use of

21 an onsite or offsite testing.

22 ‘‘(B) ALCOHOL.—The alcohol testing com23 ponent of the program shall take the form of al24 cohol breath analysis and shall conform to any

25 guidelines developed by the Secretary of Trans-
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1 portation for alcohol testing of mass transit em2 ployees under the Department of Transpor3 tation and Related Agencies Appropriations

4 Act, 1992.

5 ‘‘(2) DEFINITION.—For purposes of this section

6 the term ‘alcohol and substance abuse testing pro7 gram’ means any program under which test proce8 dures are used to take an analyze blood, breath,

9 hair, urine, saliva, or other body fluids or materials

10 for the purpose of detecting the presence or absence

11 of alcohol or a drug or its metabolites. In the case

12 of urine testing, the confirmation tests must be per13 formed in accordance with the mandatory guidelines

14 for Federal workplace testing programs published by

15 the Secretary of Health and Human Services on

16 April 11, 1988, at section 11979 of title 53, Code

17 of Federal Regulations (including any amendments

18 to such guidelines). Proper laboratory protocols and

19 procedures shall be used to assure accuracy and fair20 ness and laboratories must be subject to the require21 ments of subpart B of the mandatory guidelines,

22 State certification, the Clinical Laboratory Improve23 ments Act of the College of American Pathologists.

24 ‘‘(c) TEST REQUIREMENTS.—This section shall not

25 be construed to prohibit an employer from requiring—
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1 ‘‘(1) an applicant for employment to submit to

2 and pass an alcohol or substance abuse test before

3 employment by the employer; or

4 ‘‘(2) an employee, including managerial per5 sonnel, to submit to and pass an alcohol or sub6 stance abuse test—

7 ‘‘(A) on a for-cause basis or where the em8 ployer has reasonable suspicion to believe that

9 such employee is using or is under the influence

10 of alcohol or a controlled substance;

11 ‘‘(B) where such test is administered as

12 part of a scheduled medical examination;

13 ‘‘(C) in the case of an accident or incident,

14 involving the actual or potential loss of human

15 life, bodily injury, or property damage;

16 ‘‘(D) during the participation of an em17 ployee in an alcohol or substance abuse treat18 ment program, and for a reasonable period of

19 time (not to exceed 5 years) after the conclu20 sion of such program; or

21 ‘‘(E) on a random selection basis in work

22 units, locations, or facilities.

23 ‘‘(d) CONSTRUCTION.—Nothing in this section shall

24 be construed to require an employer to establish an alcohol

25 and substance abuse testing program for applicants or em-
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1 ployees or make employment decisions based on such test

2 results.

3 ‘‘(e) PREEMPTION.—The provisions of this section

4 shall not preempt any provision of State law to the extent

5 that such State law is inconsistent with this section.

6 ‘‘(f) INVESTIGATIONS.—The Secretary is authorized

7 to conduct testing of employees (including managerial per8 sonnel) of an employer for use of alcohol or controlled sub9 stances during any investigations of a work-related fatality

10 or serious injury.’’.

11 SEC. 11. DISCRETIONARY COMPLIANCE ASSISTANCE.

12 Subsection (a) of section 9 of the Act (29 U.S.C.

13 658(a)) is amended to read as follows:

14 ‘‘(a)(1) Nothing in this Act shall be construed as pro15 hibiting the Secretary or the authorized representative of

16 the Secretary from providing technical or compliance as17 sistance to an employer in correcting a violation discovered

18 during an inspection or investigation under this Act with19 out issuing a citation.

20 ‘‘(2) Except as provided in paragraph (3), if, upon

21 an inspection or investigation, the Secretary or an author22 ized representative of the Secretary believes that an em23 ployer has violated a requirement of section 5, of any regu24 lation, rule, or order promulgated pursuant to section 6,

25 or of any regulations prescribed pursuant to this Act, the
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1 Secretary may with reasonable promptness issue a citation

2 to the employer. Each citation shall be in writing and shall

3 describe with particularity the nature of a violation, in4 cluding a reference to the provision of the Act, regulation,

5 rule, or order alleged to have been violated. The citation

6 shall fix a reasonable time for the abatement of the viola7 tion.

8 ‘‘(3) The Secretary or the authorized representative

9 of the Secretary—

10 ‘‘(A) may issue a warning in lieu of a citation

11 with respect to a violation that has no significant re12 lationship to employee safety or health; and

13 ‘‘(B) may issue a warning in lieu of a citation

14 in cases in which an employer in good faith acts

15 promptly to abate a violation if the violation is not

16 a willful or repeated violation.’’.