II

103D CONGRESS

2D SESSION S. 1950

To amend the Occupational Safety and Health Act of 1970 to make needed

revisions in regulations and programs, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 17 (legislative day, FEBRUARY 22), 1994

Mrs. KASSEBAUM (for herself and Mr. HATCH) introduced the following bill;

which was read twice and referred to the Committee on Labor and

Human Resources

A BILL

To amend the Occupational Safety and Health Act of 1970

to make needed revisions in regulations and programs,

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.

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

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

6 (b) REFERENCE.—Whenever in this Act an amend7 ment or repeal is expressed in terms of an amendment

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

9 shall be considered to be made to a section or other provi-
2

•S 1950 IS

1 sion of the Occupational Safety and Health Act of 1970

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

3 SEC. 2. PUBLIC EMPLOYEES.

4 (a) DEFINITION OF EMPLOYER.—Section 3(5) (29

5 U.S.C. 652(5)) is amended to read as follows:

6 ‘‘(5) The term ‘employer’—

7 ‘‘(A) means a person engaged in a business

8 affecting commerce who has employees;

9 ‘‘(B) includes a congressional employer

10 and any person acting directly or indirectly in

11 the interest of an employer in relation to an in12 dividual employed by any entity of the executive

13 or judicial branch of the Government; and

14 ‘‘(C) does not include any State or political

15 subdivision of a State.’’.

16 (b) DEFINITION OF CONGRESSIONAL EMPLOYER.—

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

18 end the following new paragraph:

19 ‘‘(15) The term ‘congressional employer’ means

20 an individual who has the final authority to appoint,

21 hire, and set the terms, conditions, or privileges of

22 the congressional employment of any individual em23 ployed by any entity of the legislative branch of the

24 Government.’’.

25 (c) REPEALS AND CONFORMING AMENDMENTS.—
3

•S 1950 IS

1 (1) Section 19 (29 U.S.C. 668) is repealed.

2 (2) Section 410(b) of title 39, United States

3 Code, is amended—

4 (A) by striking paragraph (7);

5 (B) in paragraph (9), by striking ‘‘and’’;

6 (C) in paragraph (10), by striking the pe7 riod and inserting ‘‘; and’’; and

8 (D) by redesignating paragraphs (8), (9),

9 (10), and (11) as paragraphs (7), (8), (9), and

10 (10), respectively.

11 (3) Section 1312(c) of the Atomic Energy Act

12 of 1954 (42 U.S.C. 2297b–11(c)) is amended—

13 (A) by striking ‘‘sections 3(5), 4(b)(1), and

14 19’’ and inserting ‘‘sections 3(5) and 4(b)(1)’’;

15 and

16 (B) by striking ‘‘(29 U.S.C. 652(5),

17 653(b)(1), and 668))’’ and inserting ‘‘(29

18 U.S.C. 652(5) and 653(b)(1))’’.

19 SEC. 3. OCCUPATIONAL SAFETY AND HEALTH STANDARDS.

20 (a) REGULATORY FLEXIBILITY ANALYSIS.—Section

21 6 (29 U.S.C. 655) is amended by adding at the end the

22 following new subsections:

23 ‘‘(h) In promulgating any occupational safety and

24 health standard under subsection (b), the Secretary shall
4

•S 1950 IS

1 perform a regulatory flexibility analysis described in sec2 tions 603 and 604 of title 5, United States Code.

3 ‘‘(i) In promulgating any occupational safety and

4 health standard under subsection (b), the Secretary shall

5 minimize the time, effort, and costs involved in the reten6 tion, reporting, notifying, or disclosure of information to

7 the Secretary, to third parties, or to the public to the ex8 tent consistent with the purpose of the standard. Compli9 ance with the requirement of this subsection may be in10 cluded in a review under subsection (f).’’.

11 (b) ECONOMIC IMPACT ANALYSIS.—The Secretary of

12 Labor shall conduct a continuing comprehensive analysis

13 of the costs and benefits of each standard in effect under

14 section 6 of the Occupational Safety and Health Act of

15 1970 (29 U.S.C. 655). The Secretary shall first report the

16 results of such analysis to Congress upon the expiration

17 of 2 years after the date of the enactment of this Act and

18 shall make such report every 2 years thereafter.

19 SEC. 4. VARIANCES.

20 Section 6(d) (29 U.S.C. 655(d)) is amended by add21 ing at the end the following new sentence: ‘‘No citation

22 shall be issued for a violation of an occupational safety

23 and health standard that is the subject of an application

24 for a variance (which has been pending before the Sec-
5

•S 1950 IS

1 retary for at least 90 days), during the period the applica2 tion is pending before the Secretary.’’.

3 SEC. 5. INSPECTIONS.

4 (a) TRAINING AND AUTHORITY OF SECRETARY.—

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

6 subsection (g) as subsection (l) and by adding after sub7 section (f) the following new subsections:

8 ‘‘(g) Inspections shall be conducted under this section

9 by at least one individual who has training in and is

10 knowledgeable of the industry or types of hazards being

11 inspected.

12 ‘‘(h) The Secretary shall enter into agreements with

13 other Federal agencies and with States to train the inspec14 tion personnel of agencies that conduct inspections of em15 ployers to determine if employee fire protection is ade16 quate and to identify recognizable dangerous conditions,

17 and shall establish a system for the referral of information

18 with respect to fire hazards and such dangerous conditions

19 to the Secretary.

20 ‘‘(i)(1) Except as provided in paragraph (2), the Sec21 retary shall not conduct routine inspections of, or enforce

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

23 with respect to—
6

•S 1950 IS

1 ‘‘(A) any person who is engaged in a farming

2 operation that does not maintain a temporary labor

3 camp and that employs 10 or fewer employees; or

4 ‘‘(B) any employer of not more than 10 employ5 ees if such employer is included within a category of

6 employers having an occupational injury or a lost

7 work day case rate (determined under the Standard

8 Industrial Classification Code for which such data

9 are published) that is less than the national average

10 rate as most recently published by the Secretary act11 ing through the Bureau of Labor Statistics under

12 section 24.

13 ‘‘(2) Paragraph (1) shall, in the case of persons who

14 are not engaged in farming operations, not be construed

15 to prevent the Secretary from—

16 ‘‘(A) providing consultations, technical assist17 ance, and educational and training services and con18 ducting surveys and studies under this Act;

19 ‘‘(B) conducting inspections or investigations in

20 response to employee’s complaints, issuing citations

21 for violations of this Act found during such an in22 spection, and assessing a penalty for violations that

23 are not corrected within a reasonable abatement

24 period;
7

•S 1950 IS

1 ‘‘(C) taking any action authorized by this Act

2 with respect to imminent dangers;

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

4 with respect to health standards;

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

6 with respect to a report of an employment accident

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

8 in the hospitalization of at least three employees,

9 and taking any action pursuant to an investigation

10 conducted with respect to such report; and

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

12 with respect to complaints of discrimination against

13 employees for exercising their rights under this

14 Act.’’.

15 (b) EMPLOYEE NOTICE.—Section 8(f)(1) (29 U.S.C.

16 657(f)(1)) is amended—

17 (1) in the third sentence, by striking ‘‘he shall

18 make’’ and inserting ‘‘the Secretary may make’’; and

19 (2) in the fourth sentence—

20 (A) by striking ‘‘determines there’’ and in21 serting ‘‘determines that there’’; and

22 (B) by striking ‘‘he shall notify’’ and in23 serting ‘‘or that the facts alleged in the notifi24 cation do not justify an exercise of the Sec25 retary’s inspection authority under subsection
8

•S 1950 IS

1 (a) for any reason consistent with the standard

2 used by the Secretary to choose subjects for in3 spection under such subsection, the Secretary

4 shall notify’’.

5 SEC. 6. WORKSITE BASED INITIATIVES.

6 (a) PROGRAM.—The Act is amended by inserting

7 after section 8 the following new section:

8 ‘‘SEC. 8A. HEALTH AND SAFETY REINVENTION INITIATIVES.

9 ‘‘(a) IN GENERAL.—The Secretary shall by regula10 tion establish a program to encourage voluntary employer

11 and employee efforts to provide safe and healthful working

12 conditions.

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

14 subsection (a), the Secretary shall, in accordance with sub15 section (c), provide an exemption from all safety and

16 health inspections and investigations with respect to a

17 place of employment maintained by an employer, except

18 inspections and investigations conducted for the purpose

19 of—

20 ‘‘(1) determining the cause of a workplace

21 accident that resulted in the death of one or more

22 employees or the hospitalization of three or more

23 employees;

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

25 pursuant to section 8(f)(1); or
9

•S 1950 IS

1 ‘‘(3) carrying out a special emphasis program

2 under section 8.

3 ‘‘(c) EXEMPTION REQUIREMENTS.—In order to qual4 ify for the exemption provided under subsection (b), an

5 employer shall provide evidence that—

6 ‘‘(1) during the preceding year, the place of em7 ployment or conditions of employment have been re8 viewed or inspected under—

9 ‘‘(A) a consultation program provided by

10 recipients of grants under section 7(c)(1), 16

11 (c) or (d), or 23(g);

12 ‘‘(B) a certification or consultation pro13 gram provided by an insurance carrier or other

14 private business entity pursuant to a State pro15 gram, law, or regulation; or

16 ‘‘(C) a workplace consultation program

17 provided by a person certified by the Secretary

18 for purposes of providing such consultations,

19 that includes a means of ensuring that serious haz20 ards identified in the consultation are corrected

21 within an appropriate time; or

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

23 safety record and the employer maintains a safety

24 and health program for the workplace that in25 cludes—
10

•S 1950 IS

1 ‘‘(A) procedures for assessing hazards to

2 the employer’s employees that are inherent to

3 the employer’s operations or business;

4 ‘‘(B) procedures for correcting or control5 ling such hazards in a timely manner based

6 upon the severity of the hazard; and

7 ‘‘(C) employee participation in the pro8 gram that includes at the least—

9 ‘‘(i) regular consultation between the

10 employer and nonsupervisory employees re11 garding safety and health issues;

12 ‘‘(ii) assurances that participating

13 nonsupervisory employees have training or

14 expertise on safety and health issues con15 sistent with the responsibilities of such em16 ployees; and

17 ‘‘(iii) the opportunity for non18 supervisory employees to make rec19 ommendations regarding hazards in the

20 workplace and to receive responses or to

21 implement improvements in response to

22 such recommendations.

23 ‘‘(d) APPLICABILITY TO THE NATIONAL LABOR RE24 LATIONS ACT.—In order to carry out the purposes of this

25 Act and to encourage employers and employees in their
11

•S 1950 IS

1 efforts to reduce the number of occupational safety and

2 health hazards, section 8(a)(2) of the National Labor Re3 lations Act shall not apply to an employer that establishes,

4 assists, maintains, or participates in any organization,

5 health and safety committee, or other entity of any kind—

6 ‘‘(1) in which employees participate to discuss

7 matters of mutual interest (including issues of

8 health and safety, quality, productivity, or effi9 ciency); and

10 ‘‘(2) that does not have, claim, or seek author11 ity, to negotiate or enter into collective bargaining

12 agreements under such Act with the employer or, to

13 amend existing collective bargaining agreements be14 tween the employer and any labor organization.

15 ‘‘(e) CERTIFICATION.—The Secretary may require

16 that an employer in order to claim the exemption under

17 subsection (b) give certification to the Secretary and no18 tice to the employer’s employees of such eligibility.

19 ‘‘(f) RECORDS.—Records of safety and health inspec20 tions, audits, or reviews conducted by an employer and

21 not required by this Act shall not be required to be dis22 closed to the Secretary except as may be necessary to de23 termine eligibility for an exemption from inspection under

24 this section.’’.
12

•S 1950 IS

1 (b) DEFINITION.—Section 3 (29 U.S.C. 652) as

2 amended by section 2(b) is further amended by adding at

3 the end the following new paragraph:

4 ‘‘(16) The term ‘exemplary safety record’

5 means such record as the Secretary shall annually

6 determine for each industry. Such record shall in7 clude employers that have had, in the most recent

8 reporting period, no employee death caused by occu9 pational injury and fewer lost workdays due to occu10 pational injury and illness than the average for the

11 industry of which the employer is a part.’’.

12 SEC. 7. EMPLOYER DEFENSES.

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

14 the end the following new subsections:

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

16 to an employer unless the employer knew or with the exer17 cise of reasonable diligence would have known of the pres18 ence of the alleged violation. No citation shall be issued

19 under subsection (a) to an employer for an alleged viola20 tion of section 5, any standard, rule, or order promulgated

21 pursuant to section 6, any other regulation promulgated

22 under this Act, or any other occupational safety and

23 health standard, if such employer demonstrates that—
13

•S 1950 IS

1 ‘‘(1) employees of such employer have been pro2 vided with the proper training and equipment to pre3 vent such a violation;

4 ‘‘(2) work rules designed to prevent such a vio5 lation have been established and adequately commu6 nicated to employees by such employer and the em7 ployer has taken reasonable measures to discipline

8 employees when violations of such work rules have

9 been discovered;

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

11 rules led to the violation; and

12 ‘‘(4) reasonable steps have been taken by such

13 employer to discover any such violation.

14 ‘‘(e) A citation issued under subsection (a) to an em15 ployer who violates the requirements of section 5, of any

16 standard, rule, or order promulgated pursuant to section

17 6, or any other regulation promulgated, under this Act

18 shall be vacated if such employer demonstrates that em19 ployees of such employer were protected by alternative

20 methods equally or more protective of the employee’s safe21 ty and health than those required by such standard, rule,

22 order, or regulation in the factual circumstances underly23 ing the citation.
14

•S 1950 IS

1 ‘‘(f) Subsections (d) and (e) shall not be construed

2 to eliminate or modify other defenses that may exist to

3 any citation.’’.

4 SEC. 8. THE OCCUPATIONAL SAFETY AND HEALTH REVIEW

5 COMMISSION.

6 (a) SECTION 10.—Section 10(c) (29 U.S.C 659(c))

7 is amended—

8 (1) in the first sentence, by striking ‘‘fifteen

9 working days’’ and inserting ‘‘30 working days’’;

10 and

11 (2) by striking the second sentence and insert12 ing the following: ‘‘The Commission shall issue an

13 order, based on de novo findings of fact and de novo

14 conclusions of law, affirming, modifying, or vacating

15 the Secretary’s citation or proposed penalty or di16 recting other appropriate relief. Such order shall be17 come final 30 days after such order is issued.’’.

18 (b) SECTION 11.—Section 11(a) (29 U.S.C 660(a))

19 is amended by inserting after ‘‘conclusive’’ at the end of

20 the sixth sentence the following: ‘‘and the Commission’s

21 conclusions with respect to questions of law shall be given

22 deference if reasonable’’.
15

•S 1950 IS

1 SEC. 9. DISCRIMINATION.

2 Section 11(c) (29 U.S.C. 660(c)) is amended by strik3 ing paragraphs (2) and (3) and inserting the following

4 new paragraphs:

5 ‘‘(2) Any employee who believes that the employee

6 has been discharged or otherwise discriminated against by

7 any person in violation of paragraph (1) or who believes

8 that the employee has been discharged or discriminated

9 against because of an action taken by the employee’s em10 ployer in violation of section 28, may, not later than 60

11 days after the date on which such violation occurs, file

12 a complaint with the Secretary alleging such discrimina13 tion. Upon receipt of such a complaint, the Secretary shall

14 notify the person named in the complaint and commence

15 an investigation to determine if the Secretary should, on

16 behalf of such employee, file such complaint with the Com17 mission to request the Commission to take action on the

18 basis of such complaint. The Secretary shall make such

19 determination not later than 90 days after the filing of

20 such complaint.

21 ‘‘(3) If within such 90-day period, the Secretary does

22 not file a complaint on behalf of the complainant with the

23 Commission, such employee may file such complaint with

24 the Commission. If such a complaint is filed with the Com25 mission, the Commission shall provide opportunity for a

26 hearing (in accordance with section 554 of title 5, United
16

•S 1950 IS

1 States Code, but without regard to subsection (a)(3) of

2 such section), and issue an order, based upon findings of

3 fact and conclusions of law. In such an order, the Commis4 sion may require a person charged with committing a vio5 lation of paragraph (1) to take appropriate affirmative ac6 tion, including the rehiring or reinstatement of the em7 ployee to the employee’s former position with back pay and

8 interest. Upon completion of a proceeding on such order,

9 the Commission may award the prevailing party a reason10 able attorney’s fee. Final orders of the Commission may

11 be appealed as provided in subsection (a).

12 ‘‘(4)(A) Anytime after a complaint has been filed with

13 the Secretary alleging a violation of paragraph (1), the

14 complaining employee, the person charged with commit15 ting the violation (referred to in this paragraph as the ‘re16 spondent’), or the Secretary has the right to request that

17 the complaint be referred to the Federal Mediation and

18 Conciliation Service (referred to in this paragraph as the

19 ‘Service’) for mediation of the dispute. In lieu of receiving

20 mediation services from the Service, the parties may upon

21 mutual agreement refer the complaint to a mediator other

22 than a mediator provided by the Service.

23 ‘‘(B) During mediation, the respondent and the com24 plaining party may be represented by legal counsel or

25 other representative of such respondent’s or party’s choice.
17

•S 1950 IS

1 ‘‘(C)(i) All contested proceedings shall be stayed dur2 ing the time for mediation and neither the Secretary nor

3 the complaining party shall file a complaint pending com4 pletion of the mediation.

5 ‘‘(ii) The mediator shall have 60 days from the date

6 of the referral to mediate to complete the mediation. If

7 the complaint has not been resolved within such 60-day

8 period or such extension as may be agreed upon, the medi9 ation shall be deemed to be completed. The parties may

10 extend the mediation for an additional 60 days by mutual

11 agreement.

12 ‘‘(iii) The complaint shall be resolved through medi13 ation in a manner that is mutually agreeable to the par14 ties. The resolution of the complaint shall be binding upon

15 the parties and shall preclude resort to other legal pro16 ceedings except as provided in subparagraph (E).

17 ‘‘(D)(i) Any agreement shall be kept confidential by

18 the parties to the mediation unless all parties to the medi19 ation agree otherwise in writing.

20 ‘‘(ii) All communications, oral or written, made in

21 connection with the mediation (including memoranda,

22 work product, transcripts, notes, or other materials) shall

23 be kept confidential by the participants to the mediation.

24 ‘‘(iii) The material referred to in clause (ii) shall not

25 be subject to disclosure through discovery or compulsory
18

•S 1950 IS

1 process and shall not be used as evidence in any investiga2 tory, arbitral, judicial, administrative, or other proceeding.

3 ‘‘(E) A party to an agreement made pursuant to me4 diation under this paragraph may bring an action to en5 force the agreement in any Federal or State court of com6 petent jurisdiction.

7 ‘‘(F) Except as provided in subparagraph (C)(iii),

8 nothing in this paragraph shall be interpreted to effect or

9 modify whatever rights and obligations the parties may

10 have under arbitration agreements or other form of alter11 native dispute resolution mechanisms.’’.

12 SEC. 10. ENFORCEMENT.

13 (a) SPECIAL CONDITIONS AND PRACTICES.—Section

14 13 (29 U.S.C. 662) is amended—

15 (1) by striking subsection (c);

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

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

18 (3) by inserting before subsection (b) (as so re19 designated) the following new subsection:

20 ‘‘(a)(1) If the Secretary determines, on the basis of

21 an inspection or investigation under this section, that a

22 condition or practice in a place of employment is such that

23 an imminent danger to safety or health exists that could

24 reasonably be expected to cause death or serious physical

25 harm or permanent impairment of the health or functional
19

•S 1950 IS

1 capacity of employees if not corrected immediately or be2 fore the imminence of such danger can be eliminated

3 through the enforcement procedures otherwise provided by

4 this Act, the Secretary may so inform the employer and

5 provide notice by posting to the affected employees and

6 shall request that the condition or practice be corrected

7 immediately or that employees be immediately removed

8 from exposure to such danger. The notice shall be removed

9 by the Secretary from the place of employment not later

10 than 72 hours after the notice was first posted unless a

11 court in an action brought under subsection (c) requires

12 that the notice be maintained. The Secretary shall not pre13 vent the continued activity of employees whose presence

14 is necessary to avoid, correct, or remove such imminent

15 danger or to maintain the capacity of a continuous process

16 operation to resume normal operations without a cessation

17 of operations or where cessation of operations is necessary,

18 to permit such to be accomplished in a safe and orderly

19 manner.

20 ‘‘(2) No person shall discharge or in any manner dis21 criminate against any employee because such employee

22 has refused to perform a duty that has been identified as

23 the source of an imminent danger by a notice posted pur24 suant to paragraph (1).’’.
20

•S 1950 IS

1 (b) MANDATORY SPECIAL EMPHASIS.—Section 8 (29

2 U.S.C. 657), as amended by section 6, is further amended

3 by adding after subsection (i) the following new sub4 section:

5 ‘‘(j)(1) The Secretary shall establish and carry out

6 a special emphasis program for identifying and correcting

7 existing or newly recognized hazards in selected industries

8 and operations and high hazard industries and operations.

9 ‘‘(2) Each special emphasis program under para10 graph (1) shall consist of a planned and coordinated ef11 fort, including outreach, education and training programs,

12 and inspections. Prior to beginning any such program, the

13 Secretary shall meet and discuss with representatives of

14 employers and employees in the industries affected by

15 such program the intended goals and benefits of such pro16 gram, the number of inspections under such program, and

17 the nature of other activities planned. To the extent prac18 ticable, the Secretary shall coordinate efforts with such

19 representatives. Each such program shall have a date of

20 termination and shall include methods of evaluating the

21 effectiveness of the program in reducing illness and injury

22 in the targeted industries or operations.’’.

23 (c) INVESTIGATIONS OF DEATHS AND SERIOUS INCI24 DENTS.—Section 8 (29 U.S.C. 657), as amended by sub-
21

•S 1950 IS

1 section (b), is further amended by inserting after sub2 section (j) the following new subsection:

3 ‘‘(k)(1) The Secretary shall investigate any work-re4 lated death or serious incident.

5 ‘‘(2) If a death or serious incident occurs in a place

6 of employment covered by this Act, the employer shall no7 tify the Secretary of the death or serious incident.

8 ‘‘(3) As used in this subsection or section 17, the

9 term ‘serious incident’ means an incident that results in

10 the hospitalization of three or more employees. The Sec11 retary shall by regulation define ‘hospitalization’.’’.

12 SEC. 11. PENALTIES.

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

14 amended—

15 (1) by striking subsections (a), (b), (c), (j), and

16 (k);

17 (2) by redesignating subsections (d), (e), (f),

18 (g), (h), (i), and (l) as subsections (b), (c), (d), (e),

19 (f), (g), and (h), respectively; and

20 (3) by inserting before subsection (b) (as so re21 designated) the following new subsection:

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

23 of section 5, any standard, rule, or order promulgated pur24 suant to section 6, or any other regulation promulgated

25 under this Act may be assessed a civil penalty of not to
22

•S 1950 IS

1 exceed $7,000. The Commission shall have authority to

2 assess all civil penalties provided in this section, giving due

3 consideration to the appropriateness of the penalty with

4 respect to—

5 ‘‘(A) the size of the employer;

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

7 violation;

8 ‘‘(C) the likely severity of any injuries directly

9 resulting from such violation;

10 ‘‘(D) the probability that the violation could re11 sult in injury or illness;

12 ‘‘(E) the employer’s good faith in correcting the

13 violation after it has been identified;

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

15 was responsible for the violation;

16 ‘‘(G) the effect of the penalty on the employer’s

17 ability to stay in business; and

18 ‘‘(H) whether the violation is the sole result of

19 the failure to meet a requirement, under this Act or

20 prescribed by regulation, with respect to the posting

21 of notices, the preparation or maintenance of occu22 pational safety and health records, or the prepara23 tion, maintenance, or submission of any written

24 information.
23

•S 1950 IS

1 ‘‘(2)(A) A penalty assessed under paragraph (1) shall

2 be reduced by 25 percent in any case in which the em3 ployer—

4 ‘‘(i) maintains a safety and health program for

5 the worksite at which the violation for which the

6 penalty was assessed took place; or

7 ‘‘(ii) shows that the worksite at which the viola8 tion for which the penalty was assessed took place

9 has an exemplary safety record.

10 If the employer maintains a program described in clause

11 (i) and has the record described in clause (ii), the penalty

12 shall be reduced by 50 percent.

13 ‘‘(B) No penalty shall be assessed against an em14 ployer for a violation other than a violation that—

15 ‘‘(i) has been previously cited by the Secretary;

16 ‘‘(ii) creates an imminent danger;

17 ‘‘(iii) has caused death; or

18 ‘‘(iv) has caused a serious incident,

19 if the worksite at which such violation occurred has been

20 reviewed or inspected under a program described in sec21 tion 8A(c)(1) during the 1-year period before the date of

22 the citation for such violation, and such employer has com23 plied with recommendations to bring such employer into

24 compliance within a reasonable period of time.’’.
24

•S 1950 IS

1 (b) SPECIAL ASSESSMENTS.—Section 17 (29 U.S.C.

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

3 by adding at the end the following new subsection:

4 ‘‘(i) The Secretary shall, by regulation, prescribe pro5 cedures for determining that conditions surrounding a vio6 lation warrant a special assessment. Such regulation shall

7 provide that all findings shall be in narrative form and

8 provide for individual review of violations for special as9 sessment in the following circumstances:

10 ‘‘(1) Violations causing fatalities.

11 ‘‘(2) An excessive history of serious incidents or

12 a pattern of violations of this Act that cause or are

13 likely to cause death or serious incidents.

14 When the Secretary determines that a special assessment

15 is appropriate, the Secretary may apply an appropriate

16 multiplier, based on the factors described in subsection

17 (a), of not greater than 10 to the penalty determined

18 under subsection (a). In addition to any fines assessed

19 with respect to the violations described in paragraphs (1)

20 and (2), the Secretary may require the employer involved

21 to establish a comprehensive safety and health program

22 for the worksite at which the violations occurred and pro23 vide regular certification to the Secretary that such em24 ployer is in compliance with such program.’’.
25

•S 1950 IS

1 (c) CITATIONS.—Section 17 (29 U.S.C. 666), as

2 amended by subsection (b), is further amended by adding

3 at the end the following new subsection:

4 ‘‘(j) Nothing in this Act shall be construed as requir5 ing the Secretary to issue a citation for violations of this

6 Act if the Secretary believes that the public interest will

7 be adequately served by a suitable written notice or

8 warning.’’.

9 (d) VICTIM’S RIGHTS.—Section 10 (29 U.S.C. 659)

10 is amended by adding at the end the following new sub11 section:

12 ‘‘(d)(1) The Secretary shall provide any individual

13 who is a victim of a violation of this Act with—

14 ‘‘(A) access to information with respect to any

15 investigation of the Secretary or hearing by the

16 Commission of such violation, to citations issued for

17 such violation, to penalties imposed under this sec18 tion for such violation, and to settlements made with

19 respect to such violation; and

20 ‘‘(B) an opportunity to meet with the Secretary

21 or a representative of the Secretary with respect to

22 such violation.

23 ‘‘(2) For purposes of paragraph (1), the term ‘victim’

24 means—
26

•S 1950 IS

1 ‘‘(A) an employee who has sustained a work-re2 lated injury or illness that is the subject of an in3 spection or investigation conducted under section 8;

4 or

5 ‘‘(B) a family member of an employee described

6 in subparagraph (A) who is killed as a result of such

7 injury or illness.’’.

8 SEC. 12. STATE PROGRAMS.

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

10 (1) in paragraph (2)—

11 (A) by striking ‘‘and which’’ and inserting

12 ‘‘which’’; and

13 (B) by inserting after the comma at the

14 end the following: ‘‘and which, standards when

15 applicable to the labeling, content, and hazard

16 information for such products, are identical to

17 any requirement under a standard promulgated

18 under section 6,’’;

19 (2) in paragraph (4), by inserting before the

20 comma the following: ‘‘in a manner at least as effec21 tive as enforcement by the Secretary’’; and

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

23 flush sentence:

24 ‘‘The Secretary may waive any of the requirements of this

25 subsection (other than the requirement of paragraph (2))
27

•S 1950 IS

1 upon the request of a State seeking approval of a plan

2 or an amendment to an approved plan. Such a waiver shall

3 not extend for more than 3 years but may be renewed if

4 the Secretary determines that the rate of occupational fa5 talities, injuries, and illnesses has declined in such State

6 during the period of the waiver.’’.

7 SEC. 13. PREVENTION OF ALCOHOL AND SUBSTANCE

8 ABUSE.

9 The Act is amended—

10 (1) by striking sections 28 through 31;

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

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

13 (3) by inserting after section 27 (29 U.S.C.

14 676) the following new section:

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

16 ‘‘(a) TESTING PROGRAMS.—Whenever there exists

17 the reasonable probability that the safety or health of any

18 employee could be endangered because of the use of alco19 hol or a controlled substance in the workplace, the em20 ployer of such employee may establish and implement an

21 alcohol and substance abuse testing program in accord22 ance with subsection (b).

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

24 standards under section 6 for substance abuse and alcohol
28

•S 1950 IS

1 testing programs established under subsection (a) as

2 follows:

3 ‘‘(1) SUBSTANCE ABUSE GUIDELINES.—The

4 substance abuse testing program shall conform, to

5 the maximum extent practicable, to subpart B of the

6 mandatory guidelines for Federal workplace drug

7 testing programs published on April 11, 1988, by

8 the Secretary of Health and Human Services at 53

9 Federal Register 11979 and any amendments adopt10 ed to such guidelines.

11 ‘‘(2) ALCOHOL GUIDELINES.—The alcohol test12 ing program shall take the form of alcohol breath

13 analysis and shall conform, to the maximum extent

14 practicable, to any guidelines developed by the Sec15 retary of Transportation for alcohol testing of mass

16 transit employees under the Department of Trans17 portation and Related Agencies Appropriations Act,

18 1992.

19 ‘‘(c) CONSTRUCTION.—This section shall not be con20 strued to prohibit an employer from requiring an employee

21 to submit to and pass an alcohol or substance abuse test—

22 ‘‘(1) on a for cause basis or where the employer

23 has reasonable suspicion to believe that such em24 ployee is using or is under the influence of alcohol

25 or a controlled substance;
29

•S 1950 IS

1 ‘‘(2) where such test is administered as part of

2 a scheduled medical examination;

3 ‘‘(3) in the case of an accident or incident in4 volving the actual or potential loss of human life,

5 bodily injury, or property damage;

6 ‘‘(4) during and for a reasonable period of time

7 (not to exceed 5 years) after the conclusion of an al8 cohol or substance abuse treatment program;

9 ‘‘(5) on a random selection basis in work units,

10 locations, or facilities where alcohol and substance

11 abuse has been identified as a problem or as part of

12 a universal testing program; or

13 ‘‘(6) on a preemployment basis.’’.

14 SEC. 14. SMALL BUSINESS ASSISTANCE AND TRAINING.

15 Section 16 (29 U.S.C. 665) is amended—

16 (1) by inserting ‘‘(a)’’ after the section designa17 tion; and

18 (2) by adding at the end the following new sub19 sections:

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

21 to employers a model injury prevention program that if

22 completed by the employer shall be considered to meet the

23 requirement for an exemption under section 8A or a re24 duction in penalty under section 17(a)(2)(A).
30

•S 1950 IS

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

2 program to provide technical assistance and consultative

3 services for employers and employees, either directly or by

4 grant or contract, concerning worksite safety and health

5 and compliance with this Act. Such assistance shall be

6 targeted at small employers and the most hazardous

7 industries.

8 ‘‘(d) This subsection authorizes the consultative serv9 ices to employers provided under cooperative agreements

10 between the States and the Occupational Safety and

11 Health Administration and described in part 1908 of title

12 39, Code of Federal Regulations.

13 ‘‘(e) Not less than one-fifth of the annual appropria14 tion made to the Secretary to carry out this Act shall be

15 expended for the purposes described in this section.’’.

16 SEC. 15. EXEMPLARY PROGRAMS.

17 (a) ESTABLISHMENT.—The Secretary of Labor shall

18 establish an award that shall periodically be made to com19 panies and other organizations that have implemented

20 particularly effective approaches to addressing occupa21 tional safety and health in the workplace, including com22 panies and organizations that provide for effective em23 ployee involvement in improving safety and health and

24 that are as a consequence deserving of special recognition.
31

•S 1950 IS

1 Recipients of the award shall receive an automatic exemp2 tion under section 8A(b).

3 (b) USE OF AWARD.—A company or organization

4 that is a recipient of an award under subsection (a) and

5 that agrees to help other American companies or organiza6 tions improve their occupational safety and health may

7 publicize its receipt of such award and use the award in

8 its advertising.

9 (c) CATEGORIES IN WHICH AWARD MAY BE

10 GIVEN.—

11 (1) CATEGORIES.—Subject to paragraph (2),

12 separate awards shall be made to qualifying organi13 zations and companies in each of the following cat14 egories:

15 (A) Small businesses.

16 (B) Other companies or their subsidiaries.

17 (C) Companies that primarily perform con18 struction work.

19 (2) CHANGE IN LIST.—The Secretary of Labor

20 may at any time expand, subdivide, or otherwise

21 modify the list of categories within which awards

22 may be made under paragraph (1) and may estab23 lish separate awards for other organizations and

24 companies including units of government, upon a de25 termination that the objectives of this section would
32

•S 1950 IS

1 be better served thereby, except that any such ex2 pansion, subdivision, modification, or establishment

3 shall not be effective unless the Secretary of Labor

4 has submitted a detailed description thereof to the

5 Congress and a period of 30 days has elapsed since

6 the submission.

7 (d) CRITERIA FOR QUALIFICATION.—An organization

8 or company may qualify for an award under subsection

9 (a) only if such organization or company—

10 (1) applies to the Secretary of Labor in writing

11 for the award;

12 (2) permits a rigorous evaluation of the occupa13 tional safety and health operations of such organiza14 tion or company; and

15 (3) meets such requirements and specifications

16 as the Secretary of Labor determines to be appro17 priate to achieve the objectives of this section.

18 In applying paragraph (3) with respect to any organiza19 tion or company, the Secretary of Labor shall rely upon

20 an intensive evaluation of the occupational safety and

21 health operation. The examination should encompass all

22 aspects of the current occupational safety and health prac23 tice of such organization or company. The award shall be

24 given only to organizations and companies that have made

25 outstanding improvements in the occupational safety and
33

•S 1950 IS

1 health practices of such organizations and companies and

2 that demonstrate effective occupational safety and health

3 practices through the training and involvement of all levels

4 of personnel.

5 (e) INFORMATION TRANSFER PROGRAM.—The Sec6 retary of Labor shall ensure that all program participants

7 receive the complete results of their evaluations described

8 under subsection (d)(2), as well as detailed explanations

9 of all suggestions for improvements. The Director shall

10 also provide information about the awards and the suc11 cessful safety and health improvement strategies and pro12 grams of the award-winning participants to all partici13 pants and other appropriate groups.

14 (f) FUNDING.—The Secretary of Labor is authorized

15 to seek and accept gifts from public and private sources

16 to carry out the program under this section.

17 (g) REPORT.—Not later than 3 years after the date

18 of the enactment of this Act, the Secretary of Labor shall

19 prepare and submit to the President and the Congress,

20 a report on the progress, findings, and conclusions of ac21 tivities conducted pursuant to this section along with rec22 ommendations for possible modifications thereof.

Æ

S 1950 IS——2

S 1950 IS——3