II

105TH CONGRESS

1ST SESSION S. 1237

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

SEPTEMBER 30, 1997

Mr. ENZI (for himself, Mr. GREGG, Mr. FRIST, Mr. JEFFORDS, Mr. COATS,

Mr. DEWINE, Mr. HUTCHINSON, Mr. BURNS, Mr. HAGEL, Ms. COLLINS,

Mr. MCCONNELL, Mr. WARNER, Mr. ALLARD, Mr. CRAIG, Mr. ROBERTS,

Mr. SESSIONS, Mr. THOMAS, Mr. SMITH of Oregon, Mr. BROWNBACK,

and Mr. NICKLES) 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 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 1997’’ or the

6 ‘‘SAFE Act’’.

7 (b) REFERENCE.—Whenever in this Act an amend8 ment or repeal is expressed in terms of an amendment
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1 to, or repeal of, a section or other provision, the reference

2 shall be considered to be made to a section or other provi3 sion of the Occupational Safety and Health Act of 1970

4 (29 U.S.C. 651 et seq.).

5 SEC. 2. PURPOSE.

6 Section 2(b) (29 U.S.C. 651(b)) is amended—

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

8 and inserting ‘‘; and’’; and

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

10 ‘‘(14) by increasing the joint cooperation of em11 ployers, employees, and the Secretary of Labor in

12 the effort to ensure safe and healthful working con13 ditions for employees.’’.

14 SEC. 3. EMPLOYEE AND EMPLOYER PARTICIPATION PRO15 GRAMS.

16 Section 4 (29 U.S.C. 653) is amended by adding at

17 the end the following:

18 ‘‘(c)(1) In order to further carry out the purpose of

19 this Act to encourage employers and employees in their

20 efforts to reduce occupational safety and health hazards,

21 employers may establish employer and employee participa22 tion programs which exist for the sole purpose of address23 ing safe and healthful working conditions.

24 ‘‘(2) An entity created under a program described in

25 paragraph (1) shall not constitute a labor organization for
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1 purposes of section 8(a)(2) of the National Labor Rela2 tions Act (29 U.S.C. 158(a)(2)) or a representative for

3 purposes of sections 1 and 2 of the Railway Labor Act

4 (45 U.S.C. 151 and 151a).

5 ‘‘(3) Nothing in this subsection shall be construed to

6 affect employer obligations under section 8(a)(5) of the

7 National Labor Relations Act (29 U.S.C. 158(a)(5)) to

8 deal with a certified or recognized employee representative

9 with respect to health and safety matters to the extent

10 otherwise required by law.’’.

11 SEC. 4. ESTABLISHMENT OF SPECIAL ADVISORY COMMIT12 TEE.

13 Section 7 (29 U.S.C. 656) is amended by adding at

14 the end the following:

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

16 enactment of this subsection, the Secretary shall establish

17 an advisory committee (pursuant to the Federal Advisory

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

19 described in paragraph (3).

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

21 ‘‘(A) 3 members who are employees;

22 ‘‘(B) 3 members who are employers;

23 ‘‘(C) 2 members who are members of the gen24 eral public; and
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1 ‘‘(D) 1 member who is a State official from a

2 State plan State.

3 Each member of the advisory committee shall have exper4 tise in workplace safety and health as demonstrated by

5 the educational background of the member.

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

7 recommendations to the Secretary with respect to the es8 tablishment and implementation of a consultation services

9 program under section 8A.’’.

10 SEC. 5. THIRD PARTY CONSULTATION SERVICES PROGRAM.

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

12 amended by inserting after section 8 the following:

13 ‘‘SEC. 8A. THIRD PARTY CONSULTATION SERVICES PRO14 GRAM.

15 ‘‘(a) ESTABLISHMENT OF PROGRAM.—

16 ‘‘(1) IN GENERAL.—Not later than 12 months

17 after the date of enactment of this section, the Sec18 retary shall establish and implement, by regulation,

19 a program that qualifies individuals to provide con20 sultation services to employers to assist employers in

21 the identification and correction of safety and health

22 hazards in the workplaces of employers.

23 ‘‘(2) ELIGIBILITY.—Each of the following indi24 viduals shall be eligible to be qualified under the

25 program:
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1 ‘‘(A) An individual licensed by a State au2 thority as a physician, industrial hygienist, pro3 fessional engineer, safety engineer, safety pro4 fessional, or occupational nurse.

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

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

7 Federal occupational safety and health inspec8 tor for not less than a 5-year period.

9 ‘‘(C) An individual qualified in an occupa10 tional health or safety field by an organization

11 whose program has been accredited by a nation12 ally recognized private accreditation organiza13 tion or by the Secretary.

14 ‘‘(D) Other individuals determined to be

15 qualified by the Secretary.

16 ‘‘(3) GEOGRAPHICAL SCOPE OF CONSULTATION

17 SERVICES.—An individual qualified under the pro18 gram may provide consultation services in any State.

19 ‘‘(b) SAFETY AND HEALTH REGISTRY.—The Sec20 retary shall develop and maintain a registry that includes

21 all individuals that are qualified under the program to pro22 vide the consultation services described in subsection (a)

23 and shall publish and make such registry readily available

24 to the general public.

25 ‘‘(c) DISCIPLINARY ACTIONS.—
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1 ‘‘(1) IN GENERAL.—The Secretary may revoke

2 the status of an individual qualified under subsection

3 (a) if the Secretary determines that the individual—

4 ‘‘(A) has failed to meet the requirements

5 of the program; or

6 ‘‘(B) has committed malfeasance, gross

7 negligence, or fraud in connection with any con8 sultation services provided by the qualified indi9 vidual.

10 ‘‘(d) CONSULTATION SERVICES.—

11 ‘‘(1) SCOPE OF CONSULTATION SERVICES.—

12 ‘‘(A) IN GENERAL.—The consultation serv13 ices described in subsection (a), and provided

14 by an individual qualified under the program,

15 shall include an evaluation of the workplace of

16 an employer to determine if the employer is in

17 compliance with the requirements of this Act,

18 including any regulations promulgated pursuant

19 to this Act.

20 ‘‘(B) NON-FIXED WORK SITES.—With re21 spect to the employees of an employer who do

22 not work at a fixed site, the consultation serv23 ices described in subsection (a), and provided

24 by an individual qualified under the program,

25 shall include an evaluation of the safety and
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1 health program of the employer to determine if

2 the employer is in compliance with the require3 ments of this Act, including any regulations

4 promulgated under this Act.

5 ‘‘(2) CONSULTATION REPORT.—Not later than

6 10 business days after an individual qualified under

7 the program provides the consultation services de8 scribed in subsection (a) to an employer, the individ9 ual shall prepare and submit a written report to the

10 employer that includes an identification of any viola11 tions of this Act and requirements with respect to

12 corrective measures the employer needs to carry out

13 in order for the workplace of the employer to be in

14 compliance with the requirements of this Act.

15 ‘‘(3) REINSPECTION.—Not later than 30 days

16 after an individual qualified under the program sub17 mits a report to an employer under paragraph (2),

18 or on a date agreed on by the individual and the em19 ployer, the individual shall reinspect the workplace

20 of the employer to verify that any occupational safe21 ty or health violations identified in the report have

22 been corrected and the workplace of the employer is

23 in compliance with this Act. If, after such reinspec24 tion, the individual determines that the workplace is

25 in compliance with the requirements of this Act, the
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1 individual shall provide the employer a declaration

2 of compliance.

3 ‘‘(4) GUIDELINES.—The Secretary, in consulta4 tion with an advisory committee established in sec5 tion 7(d), shall develop model guidelines for use in

6 evaluating a workplace under paragraph (1).

7 ‘‘(e) ACCESS TO RECORDS.—Any records relating to

8 consultation services (as described in subsection (a)) pro9 vided by an individual qualified under the program, or

10 records, reports, or other information prepared in connec11 tion with safety and health inspections, audits, or reviews

12 conducted by or for an employer and not required under

13 this Act, shall not be admissible in a court of law or ad14 ministrative proceeding against the employer except that

15 such records may be used as evidence for purposes of a

16 disciplinary action under subsection (c).

17 ‘‘(f) EXEMPTION.—

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

19 a contract with an individual qualified under the

20 program, to provide consultation services described

21 in subsection (a), and receives a declaration of com22 pliance under subsection (d)(3), the employer shall

23 be exempt from the assessment of any civil penalty

24 under section 17 for a period of 2 years after the

25 date the employer receives the declaration.
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1 ‘‘(2) EXCEPTIONS.—Paragraph (1) shall not

2 apply—

3 ‘‘(A) if the employer involved has not made

4 a good faith effort to remain in compliance as

5 required under the declaration of compliance; or

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

7 fundamental change in the hazards of the work8 place.

9 ‘‘(g) DEFINITION.—In this section, the term ‘pro10 gram’ means the program established by the Secretary

11 under subsection (a).’’.

12 SEC. 6. INDEPENDENT SCIENTIFIC PEER REVIEW.

13 Section 6(b) (29 U.S.C. 655(b)(1)) is amended—

14 (1) by striking: ‘‘(4) Within’’ and inserting:

15 ‘‘(4)(A) Within’’; and

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

17 ‘‘(B)(i) Prior to issuing a final standard under this

18 paragraph, the Secretary shall submit the draft final

19 standard and a copy of the administrative record to the

20 National Academy of Sciences for review in accordance

21 with clause (ii).

22 ‘‘(ii)(I) The National Academy of Sciences shall ap23 point an independent Scientific Review Committee.

24 ‘‘(II) The Scientific Review Committee shall conduct

25 an independent review of the draft final standard and the
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1 scientific literature and make written recommendations

2 with respect to the draft final standard to the Secretary,

3 including recommendations relating to the appropriateness

4 and adequacy of the scientific data, scientific methodology,

5 and scientific conclusions, adopted by the Secretary.

6 ‘‘(III) If the Secretary decides to modify the draft

7 final standard in response to the recommendations pro8 vided by the Scientific Review Committee, the Scientific

9 Review Committee shall be given an opportunity to review

10 and comment on the modifications before the final stand11 ard is issued.

12 ‘‘(IV) The recommendations of the Scientific Review

13 Committee shall be published with the final standard in

14 the Federal Register.’’.

15 SEC. 7. CONTINUING EDUCATION AND PROFESSIONAL CER16 TIFICATION FOR CERTAIN OCCUPATIONAL

17 SAFETY AND HEALTH ADMINISTRATION PER18 SONNEL.

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

20 the end the following:

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

22 this Act shall (not later than 2 years after the date of

23 enactment of this subsection or 2 years after the initial

24 employment of the employee) meet the eligibility require25 ments prescribed under subsection (a)(2) of section 8A.
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1 ‘‘(i) The Secretary shall ensure that any Federal em2 ployee responsible for enforcing this Act who carries out

3 inspections or investigations under this section, receive

4 professional education and training at least every 5 years

5 as prescribed by the Secretary.’’.

6 SEC. 8. INSPECTION PROCEDURES AND QUOTAS.

7 (a) IN GENERAL.—Section 8(f) (29 U.S.C. 657(f))

8 is amended—

9 (1) in paragraph (1)—

10 (A) in the second sentence, by inserting be11 fore ‘‘and a copy’’ the following: ‘‘and shall

12 state whether the alleged violation has been

13 brought to the attention of the employer and if

14 so, whether the employer has refused to take

15 any action to correct the alleged violation,’’;

16 (B) by inserting after the third sentence

17 the following: ‘‘The inspection shall be con18 ducted for the limited purpose of determining

19 whether the violation exists. During such an in20 spection, the Secretary may take appropriate

21 actions with respect to health and safety viola22 tions that are not within the scope of the in23 spection and that are observed by the Secretary

24 or an authorized representative of the Secretary

25 during the inspection.’’; and
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1 (C) by inserting before the last period the

2 following: ‘‘, and, upon request by the employee

3 or employee representative, shall provide a writ4 ten statement of the reasons for the determina5 tion of the Secretary’’; and

6 (2) by adding at the end thereof the following:

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

8 of the Secretary may, as a method of investigating an al9 leged violation or danger under this subsection, attempt,

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

11 or other appropriate methods to determine whether—

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

13 with respect to the alleged violation or danger; or

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

15 that a hazard exists.

16 ‘‘(4) The Secretary is not required to conduct an in17 spection under this subsection if the Secretary determines

18 that a request for an inspection was made for reasons

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

20 employer or that the employees of an employer are not

21 at risk.’’.

22 (b) QUOTAS.—Section 9 (29 U.S.C. 658) is amended

23 by adding at the end the following:

24 ‘‘(d) The Secretary shall not establish for any em25 ployee within the Occupational Safety and Health Admin-
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1 istration (including any regional director, area director,

2 supervisor, or inspector) a quota with respect to the num3 ber of inspections conducted, the number of citations is4 sued, or the amount of penalties collected, in accordance

5 with this Act.

6 ‘‘(e) Not later than 12 months after the date of en7 actment of this subsection and annually thereafter, the

8 Secretary shall report on the number of employers that

9 are inspected under this Act and determined to be in com10 pliance with the requirements prescribed under this Act.’’.

11 SEC. 9. PERSONAL RESPONSIBILITIES.

12 (a) THE USE OF ALTERNATIVE METHODS AS AN AF13 FIRMATIVE DEFENSE.—Section 9 (29 U.S.C. 658), as

14 amended by section 8, is further amended by adding at

15 the end the following:

16 ‘‘(f)(1) No citation may be issued under subsection

17 (a) to an employer unless the employer knew, or with the

18 exercise of reasonable diligence, would have known, of the

19 presence of an alleged violation.

20 ‘‘(2) No citation shall be issued under subsection (a)

21 to an employer for an alleged violation of section 5, any

22 standard, rule, or order promulgated pursuant to section

23 6, any other regulation promulgated under this Act, or

24 any other occupational safety and health standard, if the

25 employer demonstrates that—
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1 ‘‘(A) the employees of the employer have been

2 provided with the proper training and equipment to

3 prevent such a violation;

4 ‘‘(B) work rules designed to prevent such a vio5 lation have been established and adequately commu6 nicated to the employees by the employer and the

7 employer has taken reasonable measures to dis8 cipline employees when violations of the work rules

9 have been discovered;

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

11 rules led to the violation; and

12 ‘‘(D) reasonable measures have been taken by

13 the employer to discover any such violation.

14 ‘‘(g) A citation issued under subsection (a) to an em15 ployer who violates section 5, any standard, rule, or order

16 promulgated pursuant to section 6, or any other regulation

17 promulgated under this Act shall be vacated if such em18 ployer demonstrates that the employees of such employer

19 were protected by alternative methods that are equally or

20 more protective of the safety and health of the employees

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

22 or regulation in the factual circumstances underlying the

23 citation.
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1 ‘‘(h) Subsections (f) and (g) shall not be construed

2 to eliminate or modify other defenses that may exist to

3 any citation.’’.

4 (b) EMPLOYEE RESPONSIBILITY.—The Occupational

5 Safety and Health Act of 1970 (29 U.S.C. 651 et seq.)

6 is amended by inserting after section 10 the following:

7 ‘‘SEC. 10A. EMPLOYEE RESPONSIBILITY.

8 ‘‘(a) IN GENERAL.—Notwithstanding any other pro9 vision of this Act, an employee who, with respect to per10 sonal protective equipment, willfully violates any require11 ment of section 5 or any standard, rule, or order promul12 gated pursuant to section 6, or any regulation prescribed

13 pursuant to this Act, may be assessed a civil penalty, as

14 determined by the Secretary, for each violation.

15 ‘‘(b) CITATIONS.—If, upon inspection and investiga16 tion, the Secretary or the authorized representative of the

17 Secretary believes that an employee of an employer has,

18 with respect to personal protective equipment, violated any

19 requirement of section 5 or any standard, rule, or order

20 promulgated pursuant to section 6, or any regulation pre21 scribed pursuant to this Act, the Secretary shall within

22 60 days issue a citation to the employee. Each citation

23 shall be in writing and shall describe with particularity

24 the nature of the violation, including a reference to the

25 provision of this Act, standard, rule, regulation, or order
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1 alleged to have been violated. No citation may be issued

2 under this section after the expiration of 6 months follow3 ing the occurrence of any violation.

4 ‘‘(c) NOTIFICATION.—The Secretary shall notify the

5 employee by certified mail of the citation and proposed

6 penalty and that the employee has 15 working days within

7 which to notify the Secretary that the employee wishes to

8 contest the citation or penalty. If no notice is filed by the

9 employee within 15 working days, the citation and the

10 penalty, as proposed, shall be deemed a final order of the

11 Commission and not subject to review by any court or

12 agency.

13 ‘‘(d) CONTESTING OF CITATION.—If the employee

14 notifies the Secretary that the employee intends to contest

15 the citation or proposed penalty, the Secretary shall imme16 diately advise the Commission of such notification, and the

17 Commission shall afford an opportunity for a hearing (in

18 accordance section 554 of title 5, United States Code).

19 The Commission shall after the hearing issue an order,

20 based on findings of fact, affirming, modifying, or

21 vacating the Secretary’s citation or proposed penalty, or

22 directing other appropriate relief. Such order shall become

23 final 30 days after issuance of the order.’’.
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1 SEC. 10. REDUCED PENALTIES FOR PAPERWORK VIOLA2 TIONS.

3 Section 17 (29 U.S.C. 666) is amended by striking

4 subsection (i) and inserting the following:

5 ‘‘(i) Any employer who violates any of the posting or

6 paperwork requirements, other than fraudulent reporting

7 requirement deficiencies, prescribed under this Act shall

8 not be assessed a civil penalty for such a violation unless

9 the Secretary determines that the employer has violated

10 subsection (a) or (d) with respect to the posting or paper11 work requirements.’’.

12 SEC. 11. REVIEW BY THE COMMISSION.

13 Section 17 (29 U.S.C. 666) is amended by striking

14 subsection (j) and inserting the following:

15 ‘‘(j) The Commission shall have authority to assess

16 all civil penalties under this section. In assessing a penalty

17 under this section for a violation, the Commission shall

18 give due consideration to the appropriateness of the pen19 alty with respect to—

20 ‘‘(1) the size of an employer;

21 ‘‘(2) the number of employees exposed to the

22 violation;

23 ‘‘(3) the likely severity of any injuries directly

24 resulting from the violation;

25 ‘‘(4) the probability that the violation could re26 sult in injury or illness;
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1 ‘‘(5) the good faith of an employer in correcting

2 the violation after the violation has been identified;

3 ‘‘(6) the history of previous violations by an em4 ployer; and

5 ‘‘(7) whether the violation is the sole result of

6 the failure of an employer to meet a requirement

7 under this Act, or prescribed by regulation, with re8 spect to the posting of notices, the preparation or

9 maintenance of occupational safety and health

10 records, or the preparation, maintenance, or submis11 sion of any written information.’’.

12 SEC. 12. TECHNICAL ASSISTANCE PROGRAM.

13 (a) IN GENERAL.—Section 21(c) (29 U.S.C. 670(c))

14 is amended—

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

16 The’’;

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

18 provide’’;

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

20 consult’’; and

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

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

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

24 cooperative agreements with States for the provision of
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1 consultation services by such States to employers concern2 ing the provision of safe and healthful working conditions.

3 ‘‘(B)(i) Except as provided in clause (ii), the Sec4 retary shall reimburse a State that enters into a coopera5 tive agreement under subparagraph (A) in an amount that

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

7 the provision of consultation services under such agree8 ment.

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

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

11 provision of—

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

13 State personnel operating under a cooperative agree14 ment; and

15 ‘‘(II) specified out-of-State travel expenses in16 curred by such personnel.

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

18 subparagraph shall be limited to costs incurred by such

19 State for the provision of consultation services under this

20 paragraph and the costs described in clause (ii).

21 ‘‘(C) Notwithstanding any other provisions of law,

22 not less than 15 percent of the total amount of funds ap23 propriated for the Occupational Safety and Health Admin24 istration for a fiscal year shall be used for education, con25 sultation, and outreach efforts.’’.
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1 (b) PILOT PROGRAM.—Section 21 (29 U.S.C. 670)

2 is amended by adding at the end the following:

3 ‘‘(d)(1) Not later than 90 days after the date of en4 actment of this subsection, the Secretary shall establish

5 and carry out a pilot program in 3 States to provide expe6 dited consultation services, with respect to the provision

7 of safe and healthful working conditions, to employers that

8 are small businesses (as the term is defined by the Admin9 istrator of the Small Business Administration). The Sec10 retary shall carry out the program for a period not to ex11 ceed 2 years.

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

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

14 on which the Secretary receives a request from an em15 ployer.

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

17 employer requesting consultation services under para18 graph (1). The fee shall be in an amount determined by

19 the Secretary. Employers paying a fee shall receive prior20 ity consultation services by the Secretary.

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

22 an employer for a violation found by the Secretary during

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

24 permit the employer to carry out corrective measures to

25 correct the conditions causing the violation. The Secretary
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1 shall conduct not more than 2 visits to the workplace of

2 the employer to determine if the employer has carried out

3 the corrective measures. The Secretary shall issue a cita4 tion as prescribed under section 5 if, after such visits, the

5 employer has failed to carry out the corrective measures.

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

7 the program under paragraph (1), the Secretary shall pre8 pare and submit a report to the appropriate committees

9 of Congress that contains an evaluation of the implemen10 tation of the pilot program.’’.

11 SEC. 13. VOLUNTARY PROTECTION PROGRAMS.

12 (a) COOPERATIVE AGREEMENTS.—The Secretary of

13 Labor shall establish cooperative agreements with employ14 ers to encourage the establishment of comprehensive safe15 ty and health management systems that include—

16 (1) requirements for systematic assessment of

17 hazards;

18 (2) comprehensive hazard prevention, mitiga19 tion, and control programs;

20 (3) active and meaningful management and em21 ployee participation in the voluntary program de22 scribed in subsection (b); and

23 (4) employee safety and health training.

24 (b) VOLUNTARY PROTECTION PROGRAM.—
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1 (1) IN GENERAL.—The Secretary of Labor shall

2 establish and carry out a voluntary protection pro3 gram (consistent with subsection (a)) to encourage

4 and recognize the achievement of excellence in both

5 the technical and managerial protection of employees

6 from occupational hazards. The Secretary of Labor

7 shall encourage small businesses (as the term is de8 fined by the Administrator of the Small Business

9 Administration) to participate in the voluntary pro10 tection program by carrying out outreach and assist11 ance initiatives and developing program require12 ments that address the needs of small businesses.

13 (2) PROGRAM REQUIREMENT.—The voluntary

14 protection program shall include the following:

15 (A) APPLICATION.—Employers who volun16 teer under the program shall be required to

17 submit an application to the Secretary of Labor

18 demonstrating that the worksite with respect to

19 which the application is made meets such re20 quirements as the Secretary of Labor may re21 quire for participation in the program.

22 (B) ONSITE EVALUATIONS.—There shall

23 be onsite evaluations by representatives of the

24 Secretary of Labor to ensure a high level of

25 protection of employees. The onsite visits shall
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1 not result in enforcement of citations under the

2 Occupational Safety and Health Act of 1970

3 (29 U.S.C. 651 et seq.).

4 (C) INFORMATION.—Employers who are

5 approved by the Secretary of Labor for partici6 pation in the program shall assure the Sec7 retary of Labor that information about the

8 safety and health program of the employers

9 shall be made readily available to the Secretary

10 of Labor to share with employees.

11 (D) REEVALUATIONS.—Periodic reevalua12 tions by the Secretary of Labor of the employ13 ers shall be required for continued participation

14 in the program.

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

16 a program has been approved shall, during partici17 pation in the program be exempt from inspections or

18 investigations and certain paperwork requirements

19 to be determined by the Secretary of Labor, except

20 that this paragraph shall not apply to inspections or

21 investigations arising from employee complaints, fa22 talities, catastrophes, or significant toxic releases.
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1 SEC. 14. PREVENTION OF ALCOHOL AND SUBSTANCE

2 ABUSE.

3 The Occupational Safety and Health Act of 1970 (29

4 U.S.C. 651 et seq.) is amended—

5 (1) by striking sections 29, 30, and 31;

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

7 sections 30, 31, and 32, respectively; and

8 (3) by inserting after section 28 (29 U.S.C.

9 676) the following:

10 ‘‘SEC. 29. ALCOHOL AND SUBSTANCE ABUSE TESTING.

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

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

14 with subsection (b).

15 ‘‘(b) FEDERAL GUIDELINES.—An alcohol and sub16 stance abuse testing program described in subsection (a)

17 shall meet the following requirements:

18 ‘‘(1) SUBSTANCE ABUSE.—A substance abuse

19 testing program shall permit the use of an onsite or

20 offsite urine screening or other recognized screening

21 methods, so long as the confirmation tests are per22 formed in accordance with the mandatory guidelines

23 for Federal workplace testing programs published by

24 the Secretary of Health and Human Services on

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

26 of Federal Regulations (including any amendments
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1 to such guidelines), in a lab that is subject to the

2 requirements of subpart B of such mandatory guide3 lines.

4 ‘‘(2) ALCOHOL.—The alcohol testing component

5 of the program shall take the form of alcohol breath

6 analysis and shall conform to any guidelines devel7 oped by the Secretary of Transportation for alcohol

8 testing of mass transit employees under the Depart9 ment of Transportation and Related Agencies Ap10 propriations Act, 1992.

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

12 be construed to prohibit an employer from requiring—

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

14 and pass an alcohol or substance abuse test before

15 employment by the employer; or

16 ‘‘(2) an employee, including managerial person17 nel, to submit to and pass an alcohol or substance

18 abuse test—

19 ‘‘(A) on a for-cause basis or where the em20 ployer has reasonable suspicion to believe that

21 such employee is using or is under the influence

22 of alcohol or a controlled substance;

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

24 part of a scheduled medical examination;
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1 ‘‘(C) in the case of an accident or incident,

2 involving the actual or potential loss of human

3 life, bodily injury, or property damage;

4 ‘‘(D) during the participation of an em5 ployee in an alcohol or substance abuse treat6 ment program, and for a reasonable period of

7 time (not to exceed 5 years) after the conclu8 sion of such program; or

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

10 units, locations, or facilities.

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

12 be construed to require an employer to establish an alcohol

13 and substance abuse testing program for applicants or em14 ployees or make employment decisions based on such test

15 results.

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

17 shall preempt any provision of State law to the extent that

18 such State law is inconsistent with this section.

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

20 to conduct testing of employees (including managerial per21 sonnel) of an employer for use of alcohol or controlled sub22 stances during any investigations of a work-related fatality

23 or serious injury.’’.
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1 SEC. 15. CONSULTATION ALTERNATIVES.

2 Subsection (a) of section 9 (29 U.S.C. 658(a)) is

3 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—
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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