```

[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 385 Introduced in Senate (IS)]

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.

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

SECTION 1. SHORT TITLE; REFERENCE.

    (a) Short Title.--This Act may be cited as the ``Safety Advancement 
for Employees Act of 1999'' or the ``SAFE Act''.
    (b) Reference.--Whenever in this Act an amendment or repeal is 
expressed in terms of an amendment to, or repeal of, a section or other 
provision, the reference shall be considered to be made to a section or 
other provision of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 651 et seq.).

 SEC. 2. PURPOSE.

    Section 2(b) of the Act (29 U.S.C. 651(b)) is amended--
            (1) in paragraph (13), by striking the period and inserting 
        ``; and''; and
            (2) by adding at the end the following:
            ``(14) by increasing the joint cooperation of employers, 
        employees, and the Secretary of Labor in the effort to ensure 
        safe and healthful working conditions for employees.''.

 SEC. 3. THIRD PARTY CONSULTATION SERVICES PROGRAM.

    (a) Program.--The Act (29 U.S.C. 651 et seq.) is amended by 
inserting after section 8 the following:

``SEC. 8A. THIRD PARTY CONSULTATION SERVICES PROGRAM.

    ``(a) Purpose.--Recognizing that--
            ``(1) employee safety is of paramount concern;
            ``(2) employers are overburdened by regulations and are 
        unable to read through, understand and effectively comply with 
        the voluminous requirements of this Act; and
            ``(3) the Secretary is unable to individually satisfy the 
        compliance needs of each employer and employee within its 
        jurisdiction;
it is the purpose of this section to encourage employers to conduct 
voluntary safety and health audits using the expertise of qualified 
safety and health consultants and to proactively seek individualized 
solutions to workplace safety and health concerns.
    ``(b) Establishment of Program.--
            ``(1) In general.--Not later than 18 months after the date 
        of enactment of this section, the Secretary, in consultation 
        with the advisory committee established under section 7(d), 
        shall establish and implement, by regulation, a program that 
        qualifies individuals to provide consultation services to 
        employers to assist employers in the identification and 
        correction of safety and health hazards in the workplaces of 
        employers.
            ``(2) Eligibility.--The following individuals shall be 
        eligible to be qualified under the program under paragraph (1) 
        as certified safety and health consultants:
                    ``(A) An individual who is licensed by a State 
                authority as a physician, industrial hygienist, 
                professional engineer, safety engineer, safety 
                professional, or occupational nurse.
                    ``(B) An individual who has been employed as an 
                inspector for a State plan State or as a Federal 
                occupational safety and health inspector for not less 
                than a 5-year period.
                    ``(C) An individual who is qualified in an 
                occupational health or safety field by an organization 
                whose program has been accredited by a nationally 
                recognized private accreditation organization or by the 
                Secretary.
                    ``(D) Other individuals determined to be qualified 
                by the Secretary.
            ``(3) Geographical scope of consultation services.--A 
        consultant qualified under the program under paragraph (1) may 
        provide consultation services in any State.
            ``(4) Limitation based on expertise.--A consultant 
        qualified under the program under paragraph (1) may only 
        provide consultation services to an employer with respect to a 
        worksite if the work performed at that worksite coincides with 
        the particular expertise of the individual.
    ``(c) Safety and Health Registry.--The Secretary shall develop and 
maintain a registry that includes all consultants that are qualified 
under the program under subsection (b)(1) to provide the consultation 
services described in subsection (b) and shall publish and make such 
registry readily available to the general public.
    ``(d) Disciplinary Actions.--The Secretary may revoke the status of 
a consultant qualified under subsection (b), or the participation of an 
employer under subsection (b) in the third party consultation program, 
if the Secretary determines that the consultant or employer--
            ``(1) has failed to meet the requirements of the program; 
        or
            ``(2) has committed malfeasance, gross negligence, 
        collusion or fraud in connection with any consultation services 
        provided by the qualified consultant.
    ``(e) Program Requirements.--
            ``(1) Full service consultation.--The consultation services 
        described in subsection (b), and provided by a consultant 
        qualified under the program under subsection (b)(1), shall 
        include an evaluation of the workplace of an employer to 
        determine if the employer is in compliance with the 
        requirements of this Act, including any regulations promulgated 
        pursuant to this Act. Employers electing to participate in such 
        program shall contract with a consultant qualified under 
subsection (b)(2) to perform a full service visit and consultation 
covering the employer's establishment, including a complete safety and 
health program review. Following the guidance as specified in this 
section, the consultant shall discuss with the employer the elements of 
an effective program.
            ``(2) Consultation report.--
                    ``(A) In general.--After a consultant conducts a 
                comprehensive survey of an employer under a program 
                under this section, the consultant shall prepare and 
                submit to the employer a written report that includes 
                an action plan identifying any violations of this Act, 
                and any appropriate corrective measures to address the 
                violations that are identified using an effective 
                safety and health program.
                    ``(B) Elements.--A consultation report shall 
                contain each of the following elements.
                            ``(i) Action plan.--
                                    ``(I) In general.--An action plan 
                                under subparagraph (A) shall be 
                                developed in consultation with the 
                                employer as part of the initial 
                                comprehensive survey. The consultant 
                                and the employer shall jointly use the 
                                onsite time in the initial visit to the 
                                employer's place of business to agree 
                                on the terms of the action plan and the 
                                time frames for achieving specific 
                                items.
                                    ``(II) Requirements.--The action 
                                plan shall outline the specific steps 
                                that must be accomplished by the 
                                employer prior to receiving a 
                                certificate of compliance. The action 
                                plan shall address in detail--
                                            ``(aa) the employer's 
                                        correction of all identified 
                                        safety and health hazards, with 
                                        applicable time frames;
                                            ``(bb) the steps necessary 
                                        for the employer to implement 
                                        an effective safety and health 
                                        program, with applicable time 
                                        frames; and
                                            ``(cc) a statement of the 
                                        employer's commitment to work 
                                        with the consultation project 
                                        to achieve a certificate of 
                                        compliance.
                            ``(ii) Safety and health program.--An 
                        employer electing to participate in a program 
                        under this section shall establish a safety and 
                        health program to manage workplace safety and 
                        health to reduce injuries, illnesses and 
                        fatalities that complies with paragraph (3). 
                        Such safety and health program shall be 
                        appropriate to the conditions of the workplace 
                        involved.
            ``(3) Requirements for safety and health program.--
                    ``(A) Written program.--An employer electing to 
                participate shall maintain a written safety and health 
                program that contains policies, procedures, and 
                practices to recognize and protect their employees from 
                occupational safety and health hazards. Such procedures 
                shall include provisions for the identification, 
                evaluation and prevention or control of workplace 
                hazards.
                    ``(B) Major elements.--A safety and health program 
                shall include the following elements, and may include 
                other elements as necessary to the specific worksite 
                involved and as determined appropriate by the qualified 
                consultant and employer:
                            ``(i) Employer commitment and employee 
                        involvement.--
                                    ``(I) In general.--The existence of 
                                both management leadership and employee 
                                participation must be demonstrated in 
                                accordance with subclauses (II) and 
                                (III).
                                    ``(II) Management leadership.--To 
                                make a demonstration of management 
                                leadership under this subclause, the 
                                employer shall--
                                            ``(aa) set a clear worksite 
                                        safety and health policy that 
                                        employees can fully understand;
                                            ``(bb) set and communicate 
                                        clear goals and objectives with 
                                        the involvement of employees;
                                            ``(cc) provide essential 
                                        safety and health leadership in 
                                        tangible and recognizable ways;
                                            ``(dd) set positive safety 
                                        and health examples; and
                                            ``(ee) perform 
                                        comprehensive reviews of safety 
                                        and health programs for quality 
                                        assurance using a process which 
                                        promotes continuous correction.
                                    ``(III) Employee participation.--
                                With respect to employee participation, 
                                the employer shall demonstrate a 
                                commitment to working to develop a 
                                comprehensive, written and operational 
                                safety and health program that involves 
                                employees in significant ways that 
                                affect safety and health. In making 
                                such a demonstration, the employer 
                                shall--
                                            ``(aa) provide for employee 
                                        participation in actively 
                                        identifying and resolving 
                                        safety and health issues in 
                                        tangible ways that employees 
                                        can clearly understand;
                                            ``(bb) assign safety and 
                                        health responsibilities in such 
                                        a way that employees can 
                                        understand clearly what is 
                                        expected of them;
                                            ``(cc) provide employees 
                                        with the necessary authority 
                                        and resources to meet their 
                                        safety and health 
                                        responsibilities; and
                                            ``(dd) provide that safety 
                                        and health performance for 
                                        managers, supervisors and 
                                        employees be measured in 
                                        tangible ways.
                            ``(ii) Workplace analysis.--The employer, 
                        in consultation with the consultant, shall 
                        systematically identify and assess hazards in 
                        the following ways:
                                    ``(I) Conduct corrective action and 
                                regular expert surveys to update hazard 
                                inventories.
                                    ``(II) Have competent personnel 
                                review every planned or new facility, 
                                process material, or equipment.
                                    ``(III) Train all employees and 
                                supervisors, conduct routine joint 
                                inspections, and correct items 
                                identified.
                                    ``(IV) Establish a way for 
                                employees to report hazards and provide 
                                prompt responses to such reports.
                                    ``(V) Investigate worksite 
                                accidents and near accidents.
                                    ``(VI) Provide employees with the 
                                necessary information regarding 
                                incident trends, causes and means of 
                                prevention.
                            ``(iii) Hazard prevention.--The employer, 
                        in consultation with the consultant, shall--
                                    ``(I) engage in timely hazard 
                                control, working to ensure that hazard 
                                controls are fully in place and 
                                communicated to employees, with 
                                emphasis on engineering controls and 
                                enforcing safe work procedures;
                                    ``(II) maintain equipment using 
                                operators who are trained to recognize 
                                maintenance needs and perform or direct 
                                timely maintenance;
                                    ``(III) provide training on 
                                emergency planning and preparation, 
                                working to ensure that all personnel 
                                know immediately how to respond as a 
                                result of effective planning, training, 
                                and drills;
                                    ``(IV) equip facilities for 
                                emergencies with all systems and 
                                equipment in place and regularly tested 
                                so that all employees know how to 
                                communicate during emergencies and how 
                                to use equipment; and
                                    ``(V) provide for emergency medical 
                                situations using employees who are 
                                fully trained in emergency medicine.
                            ``(iv) Safety and health training.--The 
                        employer, in consultation with the consultant, 
                        shall--
                                    ``(I) involve employees in hazard 
                                assessment, development and delivery of 
                                training;
                                    ``(II) actively involve supervisors 
                                in worksite analysis by empowering them 
                                to ensure physical protections, 
                                reinforce training, enforce discipline, 
                                and explain work procedures; and
                                    ``(III) provide training in safety 
                                and health management to managers.
            ``(4) Reinspection.--At a time agreed to by the employer 
        and the consultant, the consultant may reinspect the workplace 
        of the employer to verify that the required elements in the 
        consultation report have been satisfied. If such requirements 
        have been satisfied, the employer shall be provided with a 
        certificate of compliance for that workplace by the qualified 
        consultant.
    ``(f) Exemption From Civil Penalties for Compliance.--
            ``(1) In general.--If an employer enters into a contract 
        with an individual qualified under the program under this 
        section, to provide consultation services described in 
        subsection (b), and receives a certificate of compliance under 
        subsection (e)(4), the employer shall be exempt from the 
        assessment of any civil penalty under section 17 for a period 
        of 1 year after the date on which the employer receives such 
        certificate.
            ``(2) Exceptions.--An employer shall not be exempt under 
        paragraph (1)--
                    ``(A) if the employer has not made a good faith 
                effort to remain in compliance as required under the 
                certificate of compliance; or
                    ``(B) to the extent that there has been a 
                fundamental change in the hazards of the workplace.
    ``(g) Right To Inspect.--Nothing in this section shall be construed 
to affect the rights of the Secretary to inspect and investigate 
worksites covered by a certificate of compliance.
    ``(h) Renewal Requirements.--An employer that is granted a 
certificate of compliance under this section may receive a 1 year 
renewal of the certificate if the following elements are satisfied:
            ``(1) A qualified consultant shall conduct a complete 
        onsite safety and health survey to ensure that the safety and 
        health program has been effectively maintained or improved, 
        workplace hazards are under control, and elements of the safety 
        and health program are operating effectively.
            ``(2) The consultant, in an onsite visit by the consultant, 
        has determined that the program requirements have been complied 
        with and the health and safety program has been operating 
        effectively.
    ``(i) Non-fixed Work Sites.--With respect to employer worksites 
that do not have a fixed location, a certificate of compliance shall 
only apply to that worksite which satisfies the criteria under this 
section and such certificate shall not be portable to any other 
worksite. This section shall not apply to service establishments that 
utilize essentially the same work equipment at each non-fixed 
worksite.''.

 SEC. 4. ESTABLISHMENT OF SPECIAL ADVISORY COMMITTEE.

    Section 7 of the Act (29 U.S.C. 656) is amended by adding at the 
end the following:
    ``(d)(1) Not later than 6 months after the date of enactment of 
this subsection, the Secretary shall establish an advisory committee 
(pursuant to the Federal Advisory Committee Act (5 U.S.C. App.)) to 
carry out the duties described in paragraph (3).
    ``(2) The advisory committee shall be composed of--
            ``(A) 3 members who are employees;
            ``(B) 3 members who are employers;
            ``(C) 2 members who are members of the general public; and
            ``(D) 1 member who is a State official from a State plan 
        State.
Each member of the advisory committee shall have expertise in workplace 
safety and health as demonstrated by the educational background of the 
member.
    ``(3) The advisory committee shall advise and make recommendations 
to the Secretary with respect to the establishment and implementation 
of a consultation services program under section 8A.''.

 SEC. 5. CONTINUING EDUCATION AND PROFESSIONAL CERTIFICATION FOR 
              CERTAIN OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION 
              PERSONNEL.

    Section 8 of the Act (29 U.S.C. 657) is amended by adding at the 
end the following:
    ``(h) Any Federal employee responsible for enforcing this Act 
shall, not later than 2 years after the date of enactment of this 
subsection or 2 years after the initial employment of the employee 
involved, meet the eligibility requirements prescribed under subsection 
(b)(2) of section 8A.
    ``(i) The Secretary shall ensure that any Federal employee 
responsible for enforcing this Act who carries out inspections or 
investigations under this section, receive professional education and 
training at least every 5 years as prescribed by the Secretary.''.

 SEC. 6. EXPANDED INSPECTION METHODS.

    (a) Purpose.--It is the purpose of this section to empower the 
Secretary of Labor to achieve increased employer compliance by using, 
at the Secretary's discretion, more efficient and effective means for 
conducting inspections.
    (b) General.--Section 8(f) of the Act (29 U.S.C. 657(f) is 
amended--
            (1) by adding at the end the following:
    ``(3) The Secretary or an authorized representative of the 
Secretary may, as a method of investigating an alleged violation or 
danger under this subsection, attempt, if feasible, to contact an 
employer by telephone, facsimile, or other appropriate methods to 
determine whether--
            ``(A) the employer has taken corrective actions with 
        respect to the alleged violation or danger; or
            ``(B) there are reasonable grounds to believe that a hazard 
        exists.
    ``(4) The Secretary is not required to conduct an inspection under 
this subsection if the Secretary determines that a request for an 
inspection was made for reasons other than the safety and health of the 
employees of an employer or that the employees of an employer are not 
at risk.''.

 SEC. 7. WORKSITE-SPECIFIC COMPLIANCE METHODS.

    Section 9 of the Act (29 U.S.C. 658) is amended by adding at the 
end the following:
    ``(d) A citation issued under subsection (a) to an employer who 
violates section 5, any standard, rule, or order promulgated pursuant 
to section 6, or any other regulation promulgated under this Act shall 
be vacated if such employer demonstrates that the employees of such 
employer were protected by alternative methods that are equally or more 
protective of the safety and health of the employees than the methods 
required by such standard, rule, order, or regulation in the factual 
circumstances underlying the citation.
    ``(e) Subsection (d) shall not be construed to eliminate or modify 
other defenses that may exist to any citation.''.

 SEC. 8. TECHNICAL ASSISTANCE PROGRAM.

    (a) In General.--Section 21(c) of the Act (29 U.S.C. 670(c)) is 
amended--
            (1) by striking ``(c) The'' and inserting ``(c)(1) The'';
            (2) by striking ``(1) provide'' and inserting ``(A) 
        provide'';
            (3) by striking ``(2) consult'' and inserting ``(B) 
        consult''; and
            (4) by adding at the end the following:
    ``(2)(A) The Secretary shall, through the authority granted under 
section 7(c) and paragraph (1), enter into cooperative agreements with 
States for the provision of consultation services by such States to 
employers concerning the provision of safe and healthful working 
conditions.
    ``(B)(i) Except as provided in clause (ii), the Secretary shall 
reimburse a State that enters into a cooperative agreement under 
subparagraph (A) in an amount that equals 90 percent of the costs 
incurred by the State for the provision of consultation services under 
such agreement.
    ``(ii) A State shall be reimbursed by the Secretary for 90 percent 
of the costs incurred by the State for the provision of--
            ``(I) training approved by the Secretary for State 
        personnel operating under a cooperative agreement; and
            ``(II) specified out-of-State travel expenses incurred by 
        such personnel.
    ``(iii) A reimbursement paid to a State under this subparagraph 
shall be limited to costs incurred by such State for the provision of 
consultation services under this paragraph and the costs described in 
clause (ii).''.
    (b) Pilot Program.--Section 21 of the Act (29 U.S.C. 670) is 
amended by adding at the end the following:
    ``(d)(1) Not later than 90 days after the date of enactment of this 
subsection, the Secretary shall establish and carry out a pilot program 
in 3 States to provide expedited consultation services, with respect to 
the provision of safe and healthful working conditions, to employers 
that are small businesses (as the term is defined by the Administrator 
of the Small Business Administration). The Secretary shall carry out 
the program for a period of not to exceed 2 years.
    ``(2) The Secretary shall provide consultation services under 
paragraph (1) not later than 4 weeks after the date on which the 
Secretary receives a request from an employer.
    ``(3) The Secretary may impose a nominal fee to an employer 
requesting consultation services under paragraph (1). The fee shall be 
in an amount determined by the Secretary. Employers paying a fee shall 
receive priority consultation services by the Secretary.
    ``(4) In lieu of issuing a citation under section 9 to an employer 
for a violation found by the Secretary during a consultation under 
paragraph (1), the Secretary shall permit the employer to carry out 
corrective measures to correct the conditions causing the violation. 
The Secretary shall conduct not more than 2 visits to the workplace of 
the employer to determine if the employer has carried out the 
corrective measures. The Secretary shall issue a citation as prescribed 
under section 5 if, after such visits, the employer has failed to carry 
out the corrective measures.
    ``(5) Not later than 90 days after the termination of the program 
under paragraph (1), the Secretary shall prepare and submit a report to 
the appropriate committees of Congress that contains an evaluation of 
the implementation of the pilot program.''.

 SEC. 9. VOLUNTARY PROTECTION PROGRAMS.

    (a) Cooperative Agreements.--The Secretary of Labor shall establish 
cooperative agreements with employers to encourage the establishment of 
comprehensive safety and health management systems that include--
            (1) requirements for systematic assessment of hazards;
            (2) comprehensive hazard prevention, mitigation, and 
        control programs;
            (3) active and meaningful management and employee 
        participation in the voluntary program described in subsection 
        (b); and
            (4) employee safety and health training.
    (b) Voluntary Protection Program.--
            (1) In general.--The Secretary of Labor shall establish and 
        carry out a voluntary protection program (consistent with 
        subsection (a)) to encourage and recognize the achievement of 
        excellence in both the technical and managerial protection of 
        employees from occupational hazards.
            (2) Program requirement.--The voluntary protection program 
        shall include the following:
                    (A) Application.--Employers who volunteer under the 
                program shall be required to submit an application to 
                the Secretary of Labor demonstrating that the worksite 
                with respect to which the application is made meets 
                such requirements as the Secretary of Labor may require 
                for participation in the program.
                    (B) Onsite evaluations.--There shall be onsite 
                evaluations by representatives of the Secretary of 
                Labor to ensure a high level of protection of 
                employees. The onsite visits shall not result in 
                enforcement of citations under the Occupational Safety 
                and Health Act of 1970 (29 U.S.C. 651 et seq.).
                    (C) Information.--Employers who are approved by the 
                Secretary of Labor for participation in the program 
                shall assure the Secretary of Labor that information 
                about the safety and health program of the employers 
                shall be made readily available to the Secretary of 
                Labor to share with employees.
                    (D) Reevaluations.--Periodic reevaluations by the 
                Secretary of Labor of the employers shall be required 
                for continued participation in the program.
            (3) Exemptions.--A site with respect to which a program has 
        been approved shall, during participation in the program be 
        exempt from inspections or investigations and certain paperwork 
        requirements to be determined by the Secretary of Labor, except 
        that this paragraph shall not apply to inspections or 
        investigations arising from employee complaints, fatalities, 
        catastrophes, or significant toxic releases.
            (4) Increased small business participation.--The Secretary 
        of Labor shall establish and implement, by regulation, a 
        program to increase participation by small businesses (as the 
        term is defined by the Administrator of the Small Business 
        Administration) in the voluntary protection program through 
        outreach and assistance initiatives and developing program 
        requirements that address the needs of small businesses.

 SEC. 10. PREVENTION OF ALCOHOL AND SUBSTANCE ABUSE.

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

``SEC. 35. ALCOHOL AND SUBSTANCE ABUSE TESTING.

    ``(a) Program Purpose.--In order to secure a safe workplace, 
employers may establish and carry out an alcohol and substance abuse 
testing program in accordance with subsection (b).
    ``(b) Federal Guidelines.--
            ``(1) Requirements.--An alcohol and substance abuse testing 
        program described in subsection (a) shall meet the following 
        requirements:
                    ``(A) Substance abuse.--A substance abuse testing 
                program shall permit the use of an onsite or offsite 
                testing.
                    ``(B) Alcohol.--The alcohol testing component of 
                the program shall take the form of alcohol breath 
                analysis and shall conform to any guidelines developed 
                by the Secretary of Transportation for alcohol testing 
                of mass transit employees under the Department of 
                Transportation and Related Agencies Appropriations Act, 
                1992.
            ``(2) Definition.--For purposes of this section the term 
        `alcohol and substance abuse testing program' means any program 
        under which test procedures are used to take an analyze blood, 
        breath, hair, urine, saliva, or other body fluids or materials 
        for the purpose of detecting the presence or absence of alcohol 
or a drug or its metabolites. In the case of urine testing, the 
confirmation tests must be performed in accordance with the mandatory 
guidelines for Federal workplace testing programs published by the 
Secretary of Health and Human Services on April 11, 1988, at section 
11979 of title 53, Code of Federal Regulations (including any 
amendments to such guidelines). Proper laboratory protocols and 
procedures shall be used to assure accuracy and fairness and 
laboratories must be subject to the requirements of subpart B of the 
mandatory guidelines, State certification, the Clinical Laboratory 
Improvements Act of the College of American Pathologists.
    ``(c) Test Requirements.--This section shall not be construed to 
prohibit an employer from requiring--
            ``(1) an applicant for employment to submit to and pass an 
        alcohol or substance abuse test before employment by the 
        employer; or
            ``(2) an employee, including managerial personnel, to 
        submit to and pass an alcohol or substance abuse test--
                    ``(A) on a for-cause basis or where the employer 
                has reasonable suspicion to believe that such employee 
                is using or is under the influence of alcohol or a 
                controlled substance;
                    ``(B) where such test is administered as part of a 
                scheduled medical examination;
                    ``(C) in the case of an accident or incident, 
                involving the actual or potential loss of human life, 
                bodily injury, or property damage;
                    ``(D) during the participation of an employee in an 
                alcohol or substance abuse treatment program, and for a 
                reasonable period of time (not to exceed 5 years) after 
                the conclusion of such program; or
                    ``(E) on a random selection basis in work units, 
                locations, or facilities.
    ``(d) Construction.--Nothing in this section shall be construed to 
require an employer to establish an alcohol and substance abuse testing 
program for applicants or employees or make employment decisions based 
on such test results.
    ``(e) Preemption.--The provisions of this section shall not preempt 
any provision of State law to the extent that such State law is 
inconsistent with this section.
    ``(f) Investigations.--The Secretary is authorized to conduct 
testing of employees (including managerial personnel) of an employer 
for use of alcohol or controlled substances during any investigations 
of a work-related fatality or serious injury.''.

 SEC. 11. DISCRETIONARY COMPLIANCE ASSISTANCE.

    Subsection (a) of section 9 of the Act (29 U.S.C. 658(a)) is 
amended to read as follows:
    ``(a)(1) Nothing in this Act shall be construed as prohibiting the 
Secretary or the authorized representative of the Secretary from 
providing technical or compliance assistance to an employer in 
correcting a violation discovered during an inspection or investigation 
under this Act without issuing a citation.
    ``(2) Except as provided in paragraph (3), if, upon an inspection 
or investigation, the Secretary or an authorized representative of the 
Secretary believes that an employer has violated a requirement of 
section 5, of any regulation, rule, or order promulgated pursuant to 
section 6, or of any regulations prescribed pursuant to this Act, the 
Secretary may with reasonable promptness issue a citation to the 
employer. Each citation shall be in writing and shall describe with 
particularity the nature of a violation, including a reference to the 
provision of the Act, regulation, rule, or order alleged to have been 
violated. The citation shall fix a reasonable time for the abatement of 
the violation.
    ``(3) The Secretary or the authorized representative of the 
Secretary--
            ``(A) may issue a warning in lieu of a citation with 
        respect to a violation that has no significant relationship to 
        employee safety or health; and
            ``(B) may issue a warning in lieu of a citation in cases in 
        which an employer in good faith acts promptly to abate a 
        violation if the violation is not a willful or repeated 
        violation.''.
                                 <all>
```