II

106TH CONGRESS

1ST SESSION S. 385

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 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 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,

3 SECTION 1. SHORT TITLE; REFERENCE.

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

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

6 ‘‘SAFE Act’’.

7 (b) REFERENCE.—Whenever in this Act an amend8 ment or repeal is expressed in terms of an amendment

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

10 shall be considered to be made to a section or other provi-
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1 sion of the Occupational Safety and Health Act of 1970

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

3 SEC. 2. PURPOSE.

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

5 amended—

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

7 and inserting ‘‘; and’’; and

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

9 ‘‘(14) by increasing the joint cooperation of em10 ployers, employees, and the Secretary of Labor in

11 the effort to ensure safe and healthful working con12 ditions for employees.’’.

13 SEC. 3. THIRD PARTY CONSULTATION SERVICES PROGRAM.

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

15 amended by inserting after section 8 the following:

16 ‘‘SEC. 8A. THIRD PARTY CONSULTATION SERVICES PRO17 GRAM.

18 ‘‘(a) PURPOSE.—Recognizing that—

19 ‘‘(1) employee safety is of paramount concern;

20 ‘‘(2) employers are overburdened by regulations

21 and are unable to read through, understand and ef22 fectively comply with the voluminous requirements of

23 this Act; and
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1 ‘‘(3) the Secretary is unable to individually sat2 isfy the compliance needs of each employer and em3 ployee within its jurisdiction;

4 it is the purpose of this section to encourage employers

5 to conduct voluntary safety and health audits using the

6 expertise of qualified safety and health consultants and

7 to proactively seek individualized solutions to workplace

8 safety and health concerns.

9 ‘‘(b) ESTABLISHMENT OF PROGRAM.—

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

11 after the date of enactment of this section, the Sec12 retary, in consultation with the advisory committee

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

14 implement, by regulation, a program that qualifies

15 individuals to provide consultation services to em16 ployers to assist employers in the identification and

17 correction of safety and health hazards in the work18 places of employers.

19 ‘‘(2) ELIGIBILITY.—The following individuals

20 shall be eligible to be qualified under the program

21 under paragraph (1) as certified safety and health

22 consultants:

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

24 State authority as a physician, industrial hy-
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1 gienist, professional engineer, safety engineer,

2 safety professional, or occupational nurse.

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

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

5 Federal occupational safety and health inspec6 tor for not less than a 5-year period.

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

8 occupational health or safety field by an organi9 zation whose program has been accredited by a

10 nationally recognized private accreditation orga11 nization or by the Secretary.

12 ‘‘(D) Other individuals determined to be

13 qualified by the Secretary.

14 ‘‘(3) GEOGRAPHICAL SCOPE OF CONSULTATION

15 SERVICES.—A consultant qualified under the pro16 gram under paragraph (1) may provide consultation

17 services in any State.

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

19 consultant qualified under the program under para20 graph (1) may only provide consultation services to

21 an employer with respect to a worksite if the work

22 performed at that worksite coincides with the par23 ticular expertise of the individual.

24 ‘‘(c) SAFETY AND HEALTH REGISTRY.—The Sec25 retary shall develop and maintain a registry that includes
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1 all consultants that are qualified under the program under

2 subsection (b)(1) to provide the consultation services de3 scribed in subsection (b) and shall publish and make such

4 registry readily available to the general public.

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

6 revoke the status of a consultant qualified under sub7 section (b), or the participation of an employer under sub8 section (b) in the third party consultation program, if the

9 Secretary determines that the consultant or employer—

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

11 program; or

12 ‘‘(2) has committed malfeasance, gross neg13 ligence, collusion or fraud in connection with any

14 consultation services provided by the qualified con15 sultant.

16 ‘‘(e) PROGRAM REQUIREMENTS.—

17 ‘‘(1) FULL SERVICE CONSULTATION.—The con18 sultation services described in subsection (b), and

19 provided by a consultant qualified under the pro20 gram under subsection (b)(1), shall include an eval21 uation of the workplace of an employer to determine

22 if the employer is in compliance with the require23 ments of this Act, including any regulations promul24 gated pursuant to this Act. Employers electing to

25 participate in such program shall contract with a
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1 consultant qualified under subsection (b)(2) to per2 form a full service visit and consultation covering

3 the employer’s establishment, including a complete

4 safety and health program review. Following the

5 guidance as specified in this section, the consultant

6 shall discuss with the employer the elements of an

7 effective program.

8 ‘‘(2) CONSULTATION REPORT.—

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

10 conducts a comprehensive survey of an em11 ployer under a program under this section, the

12 consultant shall prepare and submit to the em13 ployer a written report that includes an action

14 plan identifying any violations of this Act, and

15 any appropriate corrective measures to address

16 the violations that are identified using an effec17 tive safety and health program.

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

19 shall contain each of the following elements.

20 ‘‘(i) ACTION PLAN.—

21 ‘‘(I) IN GENERAL.—An action

22 plan under subparagraph (A) shall be

23 developed in consultation with the em24 ployer as part of the initial com25 prehensive survey. The consultant and
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1 the employer shall jointly use the on2 site time in the initial visit to the em3 ployer’s place of business to agree on

4 the terms of the action plan and the

5 time frames for achieving specific

6 items.

7 ‘‘(II) REQUIREMENTS.—The ac8 tion plan shall outline the specific

9 steps that must be accomplished by

10 the employer prior to receiving a cer11 tificate of compliance. The action plan

12 shall address in detail—

13 ‘‘(aa) the employer’s correc14 tion of all identified safety and

15 health hazards, with applicable

16 time frames;

17 ‘‘(bb) the steps necessary for

18 the employer to implement an ef19 fective safety and health pro20 gram, with applicable time

21 frames; and

22 ‘‘(cc) a statement of the em23 ployer’s commitment to work

24 with the consultation project to
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1 achieve a certificate of compli2 ance.

3 ‘‘(ii) SAFETY AND HEALTH PRO4 GRAM.—An employer electing to partici5 pate in a program under this section shall

6 establish a safety and health program to

7 manage workplace safety and health to re8 duce injuries, illnesses and fatalities that

9 complies with paragraph (3). Such safety

10 and health program shall be appropriate to

11 the conditions of the workplace involved.

12 ‘‘(3) REQUIREMENTS FOR SAFETY AND HEALTH

13 PROGRAM.—

14 ‘‘(A) WRITTEN PROGRAM.—An employer

15 electing to participate shall maintain a written

16 safety and health program that contains poli17 cies, procedures, and practices to recognize and

18 protect their employees from occupational safe19 ty and health hazards. Such procedures shall

20 include provisions for the identification, evalua21 tion and prevention or control of workplace haz22 ards.

23 ‘‘(B) MAJOR ELEMENTS.—A safety and

24 health program shall include the following ele25 ments, and may include other elements as nec-
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1 essary to the specific worksite involved and as

2 determined appropriate by the qualified consult3 ant and employer:

4 ‘‘(i) EMPLOYER COMMITMENT AND

5 EMPLOYEE INVOLVEMENT.—

6 ‘‘(I) IN GENERAL.—The existence

7 of both management leadership and

8 employee participation must be dem9 onstrated in accordance with sub10 clauses (II) and (III).

11 ‘‘(II) MANAGEMENT LEADER12 SHIP.—To make a demonstration of

13 management leadership under this

14 subclause, the employer shall—

15 ‘‘(aa) set a clear worksite

16 safety and health policy that em17 ployees can fully understand;

18 ‘‘(bb) set and communicate

19 clear goals and objectives with

20 the involvement of employees;

21 ‘‘(cc) provide essential safety

22 and health leadership in tangible

23 and recognizable ways;

24 ‘‘(dd) set positive safety and

25 health examples; and
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1 ‘‘(ee) perform comprehensive

2 reviews of safety and health pro3 grams for quality assurance

4 using a process which promotes

5 continuous correction.

6 ‘‘(III) EMPLOYEE PARTICIPA7 TION.—With respect to employee par8 ticipation, the employer shall dem9 onstrate a commitment to working to

10 develop a comprehensive, written and

11 operational safety and health program

12 that involves employees in significant

13 ways that affect safety and health. In

14 making such a demonstration, the em15 ployer shall—

16 ‘‘(aa) provide for employee

17 participation in actively identify18 ing and resolving safety and

19 health issues in tangible ways

20 that employees can clearly under21 stand;

22 ‘‘(bb) assign safety and

23 health responsibilities in such a

24 way that employees can under-
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1 stand clearly what is expected of

2 them;

3 ‘‘(cc) provide employees with

4 the necessary authority and re5 sources to meet their safety and

6 health responsibilities; and

7 ‘‘(dd) provide that safety

8 and health performance for man9 agers, supervisors and employees

10 be measured in tangible ways.

11 ‘‘(ii) WORKPLACE ANALYSIS.—The

12 employer, in consultation with the consult13 ant, shall systematically identify and assess

14 hazards in the following ways:

15 ‘‘(I) Conduct corrective action

16 and regular expert surveys to update

17 hazard inventories.

18 ‘‘(II) Have competent personnel

19 review every planned or new facility,

20 process material, or equipment.

21 ‘‘(III) Train all employees and

22 supervisors, conduct routine joint in23 spections, and correct items identified.
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1 ‘‘(IV) Establish a way for em2 ployees to report hazards and provide

3 prompt responses to such reports.

4 ‘‘(V) Investigate worksite acci5 dents and near accidents.

6 ‘‘(VI) Provide employees with the

7 necessary information regarding inci8 dent trends, causes and means of pre9 vention.

10 ‘‘(iii) HAZARD PREVENTION.—The

11 employer, in consultation with the consult12 ant, shall—

13 ‘‘(I) engage in timely hazard con14 trol, working to ensure that hazard

15 controls are fully in place and commu16 nicated to employees, with emphasis

17 on engineering controls and enforcing

18 safe work procedures;

19 ‘‘(II) maintain equipment using

20 operators who are trained to recognize

21 maintenance needs and perform or di22 rect timely maintenance;

23 ‘‘(III) provide training on emer24 gency planning and preparation,

25 working to ensure that all personnel
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1 know immediately how to respond as

2 a result of effective planning, training,

3 and drills;

4 ‘‘(IV) equip facilities for emer5 gencies with all systems and equip6 ment in place and regularly tested so

7 that all employees know how to com8 municate during emergencies and how

9 to use equipment; and

10 ‘‘(V) provide for emergency medi11 cal situations using employees who are

12 fully trained in emergency medicine.

13 ‘‘(iv) SAFETY AND HEALTH TRAIN14 ING.—The employer, in consultation with

15 the consultant, shall—

16 ‘‘(I) involve employees in hazard

17 assessment, development and delivery

18 of training;

19 ‘‘(II) actively involve supervisors

20 in worksite analysis by empowering

21 them to ensure physical protections,

22 reinforce training, enforce discipline,

23 and explain work procedures; and

24 ‘‘(III) provide training in safety

25 and health management to managers.
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1 ‘‘(4) REINSPECTION.—At a time agreed to by

2 the employer and the consultant, the consultant may

3 reinspect the workplace of the employer to verify

4 that the required elements in the consultation report

5 have been satisfied. If such requirements have been

6 satisfied, the employer shall be provided with a cer7 tificate of compliance for that workplace by the

8 qualified consultant.

9 ‘‘(f) EXEMPTION FROM CIVIL PENALTIES FOR COM10 PLIANCE.—

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

12 a contract with an individual qualified under the

13 program under this section, to provide consultation

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

15 certificate of compliance under subsection (e)(4), the

16 employer shall be exempt from the assessment of

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

18 year after the date on which the employer receives

19 such certificate.

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

21 exempt under paragraph (1)—

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

23 faith effort to remain in compliance as required

24 under the certificate of compliance; or
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1 ‘‘(B) to the extent that there has been a

2 fundamental change in the hazards of the work3 place.

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

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

6 inspect and investigate worksites covered by a certificate

7 of compliance.

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

9 is granted a certificate of compliance under this section

10 may receive a 1 year renewal of the certificate if the fol11 lowing elements are satisfied:

12 ‘‘(1) A qualified consultant shall conduct a com13 plete onsite safety and health survey to ensure that

14 the safety and health program has been effectively

15 maintained or improved, workplace hazards are

16 under control, and elements of the safety and health

17 program are operating effectively.

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

19 consultant, has determined that the program re20 quirements have been complied with and the health

21 and safety program has been operating effectively.

22 ‘‘(i) NON-FIXED WORK SITES.—With respect to em23 ployer worksites that do not have a fixed location, a certifi24 cate of compliance shall only apply to that worksite which

25 satisfies the criteria under this section and such certificate
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1 shall not be portable to any other worksite. This section

2 shall not apply to service establishments that utilize essen3 tially the same work equipment at each non-fixed work4 site.’’.

5 SEC. 4. ESTABLISHMENT OF SPECIAL ADVISORY COMMIT6 TEE.

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

8 adding at the end the following:

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

10 enactment of this subsection, the Secretary shall establish

11 an advisory committee (pursuant to the Federal Advisory

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

13 described in paragraph (3).

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

15 ‘‘(A) 3 members who are employees;

16 ‘‘(B) 3 members who are employers;

17 ‘‘(C) 2 members who are members of the gen18 eral public; and

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

20 State plan State.

21 Each member of the advisory committee shall have exper22 tise in workplace safety and health as demonstrated by

23 the educational background of the member.

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

25 recommendations to the Secretary with respect to the es-
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1 tablishment and implementation of a consultation services

2 program under section 8A.’’.

3 SEC. 5. CONTINUING EDUCATION AND PROFESSIONAL CER4 TIFICATION FOR CERTAIN OCCUPATIONAL

5 SAFETY AND HEALTH ADMINISTRATION PER6 SONNEL.

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

8 adding at the end the following:

9 ‘‘(h) Any Federal employee responsible for enforcing

10 this Act shall, not later than 2 years after the date of

11 enactment of this subsection or 2 years after the initial

12 employment of the employee involved, meet the eligibility

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

14 8A.

15 ‘‘(i) The Secretary shall ensure that any Federal em16 ployee responsible for enforcing this Act who carries out

17 inspections or investigations under this section, receive

18 professional education and training at least every 5 years

19 as prescribed by the Secretary.’’.

20 SEC. 6. EXPANDED INSPECTION METHODS.

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

22 empower the Secretary of Labor to achieve increased em23 ployer compliance by using, at the Secretary’s discretion,

24 more efficient and effective means for conducting inspec25 tions.
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1 (b) GENERAL.—Section 8(f) of the Act (29 U.S.C.

2 657(f) is amended—

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

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

5 of the Secretary may, as a method of investigating an al6 leged violation or danger under this subsection, attempt,

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

8 or other appropriate methods to determine whether—

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

10 with respect to the alleged violation or danger; or

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

12 that a hazard exists.

13 ‘‘(4) The Secretary is not required to conduct an in14 spection under this subsection if the Secretary determines

15 that a request for an inspection was made for reasons

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

17 employer or that the employees of an employer are not

18 at risk.’’.

19 SEC. 7. WORKSITE-SPECIFIC COMPLIANCE METHODS.

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

21 adding at the end the following:

22 ‘‘(d) A citation issued under subsection (a) to an em23 ployer who violates section 5, any standard, rule, or order

24 promulgated pursuant to section 6, or any other regulation

25 promulgated under this Act shall be vacated if such em-
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1 ployer demonstrates that the employees of such employer

2 were protected by alternative methods that are equally or

3 more protective of the safety and health of the employees

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

5 or regulation in the factual circumstances underlying the

6 citation.

7 ‘‘(e) Subsection (d) shall not be construed to elimi8 nate or modify other defenses that may exist to any cita9 tion.’’.

10 SEC. 8. TECHNICAL ASSISTANCE PROGRAM.

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

12 U.S.C. 670(c)) is amended—

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

14 The’’;

15 (2) by striking ‘‘(1) provide’’ and inserting ‘‘(A)

16 provide’’;

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

18 consult’’; and

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

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

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

22 cooperative agreements with States for the provision of

23 consultation services by such States to employers concern24 ing the provision of safe and healthful working conditions.
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1 ‘‘(B)(i) Except as provided in clause (ii), the Sec2 retary shall reimburse a State that enters into a coopera3 tive agreement under subparagraph (A) in an amount that

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

5 the provision of consultation services under such agree6 ment.

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

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

9 provision of—

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

11 State personnel operating under a cooperative agree12 ment; and

13 ‘‘(II) specified out-of-State travel expenses in14 curred by such personnel.

15 ‘‘(iii) A reimbursement paid to a State under this

16 subparagraph shall be limited to costs incurred by such

17 State for the provision of consultation services under this

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

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

20 U.S.C. 670) is amended by adding at the end the follow21 ing:

22 ‘‘(d)(1) Not later than 90 days after the date of en23 actment of this subsection, the Secretary shall establish

24 and carry out a pilot program in 3 States to provide expe25 dited consultation services, with respect to the provision
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1 of safe and healthful working conditions, to employers that

2 are small businesses (as the term is defined by the Admin3 istrator of the Small Business Administration). The Sec4 retary shall carry out the program for a period of not to

5 exceed 2 years.

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

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

8 on which the Secretary receives a request from an em9 ployer.

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

11 employer requesting consultation services under para12 graph (1). The fee shall be in an amount determined by

13 the Secretary. Employers paying a fee shall receive prior14 ity consultation services by the Secretary.

15 ‘‘(4) In lieu of issuing a citation under section 9 to

16 an employer for a violation found by the Secretary during

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

18 permit the employer to carry out corrective measures to

19 correct the conditions causing the violation. The Secretary

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

21 the employer to determine if the employer has carried out

22 the corrective measures. The Secretary shall issue a cita23 tion as prescribed under section 5 if, after such visits, the

24 employer has failed to carry out the corrective measures.
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1 ‘‘(5) Not later than 90 days after the termination of

2 the program under paragraph (1), the Secretary shall pre3 pare and submit a report to the appropriate committees

4 of Congress that contains an evaluation of the implemen5 tation of the pilot program.’’.

6 SEC. 9. VOLUNTARY PROTECTION PROGRAMS.

7 (a) COOPERATIVE AGREEMENTS.—The Secretary of

8 Labor shall establish cooperative agreements with employ9 ers to encourage the establishment of comprehensive safe10 ty and health management systems that include—

11 (1) requirements for systematic assessment of

12 hazards;

13 (2) comprehensive hazard prevention, mitiga14 tion, and control programs;

15 (3) active and meaningful management and em16 ployee participation in the voluntary program de17 scribed in subsection (b); and

18 (4) employee safety and health training.

19 (b) VOLUNTARY PROTECTION PROGRAM.—

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

21 establish and carry out a voluntary protection pro22 gram (consistent with subsection (a)) to encourage

23 and recognize the achievement of excellence in both

24 the technical and managerial protection of employees

25 from occupational hazards.
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1 (2) PROGRAM REQUIREMENT.—The voluntary

2 protection program shall include the following:

3 (A) APPLICATION.—Employers who volun4 teer under the program shall be required to

5 submit an application to the Secretary of Labor

6 demonstrating that the worksite with respect to

7 which the application is made meets such re8 quirements as the Secretary of Labor may re9 quire for participation in the program.

10 (B) ONSITE EVALUATIONS.—There shall

11 be onsite evaluations by representatives of the

12 Secretary of Labor to ensure a high level of

13 protection of employees. The onsite visits shall

14 not result in enforcement of citations under the

15 Occupational Safety and Health Act of 1970

16 (29 U.S.C. 651 et seq.).

17 (C) INFORMATION.—Employers who are

18 approved by the Secretary of Labor for partici19 pation in the program shall assure the Sec20 retary of Labor that information about the

21 safety and health program of the employers

22 shall be made readily available to the Secretary

23 of Labor to share with employees.

24 (D) REEVALUATIONS.—Periodic reevalua25 tions by the Secretary of Labor of the employ-
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1 ers shall be required for continued participation

2 in the program.

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

4 a program has been approved shall, during partici5 pation in the program be exempt from inspections or

6 investigations and certain paperwork requirements

7 to be determined by the Secretary of Labor, except

8 that this paragraph shall not apply to inspections or

9 investigations arising from employee complaints, fa10 talities, catastrophes, or significant toxic releases.

11 (4) INCREASED SMALL BUSINESS PARTICIPA12 TION.—The Secretary of Labor shall establish and

13 implement, by regulation, a program to increase par14 ticipation by small businesses (as the term is defined

15 by the Administrator of the Small Business Admin16 istration) in the voluntary protection program

17 through outreach and assistance initiatives and de18 veloping program requirements that address the

19 needs of small businesses.

20 SEC. 10. PREVENTION OF ALCOHOL AND SUBSTANCE

21 ABUSE.

22 The Act (29 U.S.C. 651 et seq.) is amended by add23 ing at the end the following:
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1 ‘‘SEC. 35. ALCOHOL AND SUBSTANCE ABUSE TESTING.

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

3 workplace, employers may establish and carry out an alco4 hol and substance abuse testing program in accordance

5 with subsection (b).

6 ‘‘(b) FEDERAL GUIDELINES.—

7 ‘‘(1) REQUIREMENTS.—An alcohol and sub8 stance abuse testing program described in subsection

9 (a) shall meet the following requirements:

10 ‘‘(A) SUBSTANCE ABUSE.—A substance

11 abuse testing program shall permit the use of

12 an onsite or offsite testing.

13 ‘‘(B) ALCOHOL.—The alcohol testing com14 ponent of the program shall take the form of al15 cohol breath analysis and shall conform to any

16 guidelines developed by the Secretary of Trans17 portation for alcohol testing of mass transit em18 ployees under the Department of Transpor19 tation and Related Agencies Appropriations

20 Act, 1992.

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

22 the term ‘alcohol and substance abuse testing pro23 gram’ means any program under which test proce24 dures are used to take an analyze blood, breath,

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

26 for the purpose of detecting the presence or absence
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1 of alcohol or a drug or its metabolites. In the case

2 of urine testing, the confirmation tests must be per3 formed in accordance with the mandatory guidelines

4 for Federal workplace testing programs published by

5 the Secretary of Health and Human Services on

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

7 of Federal Regulations (including any amendments

8 to such guidelines). Proper laboratory protocols and

9 procedures shall be used to assure accuracy and fair10 ness and laboratories must be subject to the require11 ments of subpart B of the mandatory guidelines,

12 State certification, the Clinical Laboratory Improve13 ments Act of the College of American Pathologists.

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

15 be construed to prohibit an employer from requiring—

16 ‘‘(1) an applicant for employment to submit to

17 and pass an alcohol or substance abuse test before

18 employment by the employer; or

19 ‘‘(2) an employee, including managerial person20 nel, to submit to and pass an alcohol or substance

21 abuse test—

22 ‘‘(A) on a for-cause basis or where the em23 ployer has reasonable suspicion to believe that

24 such employee is using or is under the influence

25 of alcohol or a controlled substance;
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1 ‘‘(B) where such test is administered as

2 part of a scheduled medical examination;

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

4 involving the actual or potential loss of human

5 life, bodily injury, or property damage;

6 ‘‘(D) during the participation of an em7 ployee in an alcohol or substance abuse treat8 ment program, and for a reasonable period of

9 time (not to exceed 5 years) after the conclu10 sion of such program; or

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

12 units, locations, or facilities.

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

14 be construed to require an employer to establish an alcohol

15 and substance abuse testing program for applicants or em16 ployees or make employment decisions based on such test

17 results.

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

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

20 that such State law is inconsistent with this section.

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

22 to conduct testing of employees (including managerial per23 sonnel) of an employer for use of alcohol or controlled sub24 stances during any investigations of a work-related fatality

25 or serious injury.’’.
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1 SEC. 11. DISCRETIONARY COMPLIANCE ASSISTANCE.

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

3 658(a)) is amended to read as follows:

4 ‘‘(a)(1) Nothing in this Act shall be construed as pro5 hibiting the Secretary or the authorized representative of

6 the Secretary from providing technical or compliance as7 sistance to an employer in correcting a violation discovered

8 during an inspection or investigation under this Act with9 out issuing a citation.

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

11 an inspection or investigation, the Secretary or an author12 ized representative of the Secretary believes that an em13 ployer has violated a requirement of section 5, of any regu14 lation, rule, or order promulgated pursuant to section 6,

15 or of any regulations prescribed pursuant to this Act, the

16 Secretary may with reasonable promptness issue a citation

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

18 describe with particularity the nature of a violation, in19 cluding a reference to the provision of the Act, regulation,

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

21 shall fix a reasonable time for the abatement of the viola22 tion.

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

24 of the Secretary—
29

•S 385 IS

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

2 with respect to a violation that has no significant re3 lationship to employee safety or health; and

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

5 in cases in which an employer in good faith acts

6 promptly to abate a violation if the violation is not

7 a willful or repeated violation.’’.

Æ