Protecting America’s Workers Act

I 116TH CONGRESS 1ST SESSION H. R. 1074 To amend the Occupational Safety and Health Act of 1970 to expand cov- erage under the Act, to increase protections for whistleblowers, to in- crease penalties for high gravity violations, to adjust penalties for infla- tion, to provide rights for victims or their family members, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 7, 2019 Mr. COURTNEY (for himself, Mr. SCOTT of Virginia, Ms. ADAMS, Ms. BONAMICI, Mr. GARAMENDI, Mr. DESAULNIER, Ms. WILSON of Florida, Mr. TAKANO, Mr. GRIJALVA, Mr. ESPAILLAT, Mr. SABLAN, Mr. NOR- CROSS, Mr. LEVIN of Michigan, Ms. OMAR, Mr. MORELLE, Ms. WILD, Mr. NADLER, Mr. PALLONE, Ms. SCHAKOWSKY, Ms. NORTON, Ms. TITUS, Mr. POCAN, Mr. LYNCH, Ms. MOORE, Ms. LEE of California, Mr. VISCLOSKY, Mr. KRISHNAMOORTHI, and Mrs. LEE of Nevada) introduced the following bill; which was referred to the Committee on Education and Labor A BILL To amend the Occupational Safety and Health Act of 1970 to expand coverage under the Act, to increase protections for whistleblowers, to increase penalties for high gravity violations, to adjust penalties for inflation, to provide rights for victims or their family members, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 19:14 Feb 21, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1074.IH H1074 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 1074 IH SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 1 (a) SHORT TITLE.—This Act may be cited as the 2 ‘‘Protecting America’s Workers Act’’. 3 (b) TABLE OF CONTENTS.—The table of contents for 4 this Act is as follows: 5 Sec. 1. Short title; table of contents. TITLE I—COVERAGE OF PUBLIC EMPLOYEES, AUTHORIZED EM- PLOYEE REPRESENTATIVES, VOLUNTARY EMERGENCY RE- SPONDERS, AND APPLICATION OF ACT Sec. 101. Coverage of public employees. Sec. 102. Authorized employee representatives. Sec. 103. Application of Act. TITLE II—INCREASING WHISTLEBLOWER PROTECTIONS Sec. 201. Enhanced protections from retaliation. TITLE III—IMPROVING REPORTING, INSPECTION, AND ENFORCEMENT PART A—DUTIES AND STANDARDS Sec. 301. General duty of employers. Sec. 302. Occupational safety and health standards. PART B—INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING Sec. 311. Posting of employee rights. Sec. 312. Employer reporting of work-related injuries, illness, deaths, and hos- pitalizations; prohibition on discouraging employee reporting. Sec. 313. No loss of employee pay for inspections. Sec. 314. Investigations of fatalities and significant incidents. Sec. 315. Recordkeeping. PART C—CITATIONS Sec. 321. Period for issuance of a citation. Sec. 322. Prohibition on unclassified citations. PART D—RIGHTS OF VICTIMS AND FAMILIES Sec. 331. Rights of victims and families. PART E—PROCEDURE FOR ENFORCEMENT Sec. 341. Right to contest citations and penalties. Sec. 342. Correction of serious, willful, or repeated violations pending contest and procedures for a stay. Sec. 343. Inaction by the Review Commission. Sec. 344. Conforming amendments. VerDate Sep 11 2014 19:14 Feb 21, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\H1074.IH H1074 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 1074 IH PART F—PENALTIES Sec. 351. Civil penalties. Sec. 352. Criminal penalties. Sec. 353. Prejudgment interest. TITLE IV—STATE PLANS Sec. 401. Concurrent enforcement authority and review of State occupational safety and health plans. Sec. 402. Evaluation of repeated violations in State plans. TITLE V—NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH Sec. 501. Health hazard evaluations by the National Institute for Occupational Safety and Health. Sec. 502. Training and employee education. TITLE VI—EFFECTIVE DATE Sec. 601. Effective date. TITLE I—COVERAGE OF PUBLIC 1 EMPLOYEES, AUTHORIZED 2 EMPLOYEE REPRESENTA- 3 TIVES, VOLUNTARY EMER- 4 GENCY RESPONDERS, AND 5 APPLICATION OF ACT 6 SEC. 101. COVERAGE OF PUBLIC EMPLOYEES. 7 (a) IN GENERAL.—Section 3(5) of the Occupational 8 Safety and Health Act of 1970 (29 U.S.C. 652(5)) is 9 amended by striking ‘‘but does not include’’ and all that 10 follows through the period at the end and inserting ‘‘in- 11 cluding the United States, a State, or a political subdivi- 12 sion of a State.’’. 13 (b) CONSTRUCTION.—Nothing in this Act shall be 14 construed to affect the application of section 18 of the Oc- 15 VerDate Sep 11 2014 19:14 Feb 21, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1074.IH H1074 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 1074 IH cupational Safety and Health Act of 1970 (29 U.S.C. 1 667). 2 SEC. 102. AUTHORIZED EMPLOYEE REPRESENTATIVES. 3 Section 3 of the Occupational Safety and Health Act 4 of 1970 (29 U.S.C. 652) is amended by adding at the end 5 the following: 6 ‘‘(15) AUTHORIZED EMPLOYEE REPRESENTA- 7 TIVE.—The term ‘authorized employee representa- 8 tive’— 9 ‘‘(A) means any person or organization 10 that for the purposes of this Act represents not 11 less than one employee at an establishment, fac- 12 tory, plant, construction site, or other work- 13 place, or other environment where work is per- 14 formed by an employee for an employer; and 15 ‘‘(B) includes a representative authorized 16 by employees, a representative of employees, or 17 any other representative of an employee under 18 this Act.’’. 19 SEC. 103. APPLICATION OF ACT. 20 Section 4(b) of the Occupational Safety and Health 21 Act of 1970 (29 U.S.C. 653(b)(1)) is amended— 22 (1) by redesignating paragraphs (2), (3), and 23 (4) as paragraphs (5), (6), and (7), respectively; and 24 VerDate Sep 11 2014 19:14 Feb 21, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1074.IH H1074 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 1074 IH (2) by striking paragraph (1) and inserting the 1 following: 2 ‘‘(1) If a Federal agency has promulgated and is en- 3 forcing a standard or regulation affecting occupational 4 safety or health of some or all of the employees within 5 that agency’s regulatory jurisdiction, and the Secretary 6 determines that such a standard or regulation as promul- 7 gated and the manner in which the standard or regulation 8 is being enforced provides protection to those employees 9 that is at least as effective as the protection provided to 10 those employees by this Act and the Secretary’s enforce- 11 ment of this Act, the Secretary may publish a certification 12 notice in the Federal Register. The notice shall set forth 13 that determination and the reasons for the determination 14 and certify that the Secretary has ceded jurisdiction to 15 that Federal agency with respect to the specified standard 16 or regulation affecting occupational safety or health. In 17 determining whether to cede jurisdiction to a Federal 18 agency, the Secretary shall seek to avoid duplication of, 19 and conflicts between, health and safety requirements. 20 Such certification shall remain in effect unless and until 21 rescinded by the Secretary. 22 ‘‘(2) The Secretary shall, by regulation, establish pro- 23 cedures by which any person who may be adversely af- 24 fected by a decision of the Secretary certifying that the 25 VerDate Sep 11 2014 19:14 Feb 21, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1074.IH H1074 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 1074 IH Secretary has ceded jurisdiction to another Federal agency 1 pursuant to paragraph (1) may petition the Secretary to 2 rescind a certification notice under such paragraph. Upon 3 receipt of such a petition, the Secretary shall investigate 4 the matter involved and shall, not later than 90 days after 5 the receipt of the petition, publish a decision with respect 6 to the petition in the Federal Register. 7 ‘‘(3) Any person who may be adversely affected by— 8 ‘‘(A) a decision of the Secretary certifying that 9 the Secretary has ceded jurisdiction to another Fed- 10 eral agency pursuant to paragraph (1); or 11 ‘‘(B) a decision of the Secretary denying a peti- 12 tion to rescind such a certification notice under 13 paragraph (1), 14 may, not later than 60 days after such decision is pub- 15 lished in the Federal Register, file a petition challenging 16 such decision with the United States Court of Appeals for 17 the circuit in which such person resides or such person 18 has a principal place of business, for judicial review of 19 such decision. A copy of the petition shall be forthwith 20 transmitted by the clerk of the court to the Secretary. The 21 Secretary’s decision shall be set aside if found to be arbi- 22 trary, capricious, an abuse of discretion, or otherwise not 23 in accordance with law. 24 VerDate Sep 11 2014 19:14 Feb 21, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1074.IH H1074 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 1074 IH ‘‘(4) Nothing in this Act shall apply to working condi- 1 tions covered by the Federal Mine Safety and Health Act 2 of 1977 (30 U.S.C. 801 et seq.).’’. 3 TITLE II—INCREASING 4 WHISTLEBLOWER PROTECTIONS 5 SEC. 201. ENHANCED PROTECTIONS FROM RETALIATION. 6 (a) EMPLOYEE ACTIONS.—Section 11(c)(1) of the 7 Occupational Safety and Health Act of 1970 (29 U.S.C. 8 660(c)(1)) is amended— 9 (1) by striking ‘‘discharge’’ and all that follows 10 through ‘‘because such’’ and inserting the following: 11 ‘‘discharge or cause to be discharged, or in any man- 12 ner discriminate against or cause to be discriminated 13 against, any employee because— 14 ‘‘(A) such’’; 15 (2) by striking ‘‘this Act or has’’ and inserting 16 the following: ‘‘this Act; 17 ‘‘(B) such employee has’’; 18 (3) by striking ‘‘in any such proceeding or be- 19 cause of the exercise’’ and inserting the following: 20 ‘‘before Congress or in any Federal or State pro- 21 ceeding related to safety or health; 22 ‘‘(C) such employee has refused to violate any 23 provision of this Act; or 24 ‘‘(D) of the exercise’’; and 25 VerDate Sep 11 2014 19:14 Feb 21, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1074.IH H1074 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 1074 IH (4) by inserting before the period at the end the 1 following: ‘‘, including the reporting of any injury, 2 illness, or unsafe condition to the employer, agent of 3 the employer, safety and health committee involved, 4 or employee safety and health representative in- 5 volved’’. 6 (b) PROHIBITION OF RETALIATION.—Section 11(c) 7 of such Act (29 U.S.C. 660(c)) is amended by striking 8 paragraph (2) and inserting the following: 9 ‘‘(2) PROHIBITION OF RETALIATION.—(A) No 10 person shall discharge, or cause to be discharged, or 11 in any manner discriminate against, or cause to be 12 discriminated against, an employee for refusing to 13 perform the employee’s duties if the employee has a 14 reasonable apprehension that performing such duties 15 would result in serious injury to, or serious impair- 16 ment of the health of, the employee or other employ- 17 ees. 18 ‘‘(B) For purposes of subparagraph (A), the 19 circumstances causing the employee’s good-faith be- 20 lief that performing such duties would pose a safety 21 or health hazard shall be of such a nature that a 22 reasonable person, under the circumstances con- 23 fronting the employee, would conclude that there is 24 such a hazard. In order to qualify for protection 25 VerDate Sep 11 2014 19:14 Feb 21, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1074.IH H1074 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 1074 IH under this paragraph, the employee, when prac- 1 ticable, shall have communicated or attempted to 2 communicate the safety or health concern to the em- 3 ployer and have not received from the employer a re- 4 sponse reasonably calculated to allay such concern.’’. 5 (c) PROCEDURE.—Section 11(c) of such Act (29 6 U.S.C. 660(c)) is amended by striking paragraph (3) and 7 inserting the following: 8 ‘‘(3) COMPLAINT.—Any employee who believes 9 that the employee has been discharged, disciplined, 10 or otherwise discriminated against by any person in 11 violation of paragraph (1) or (2) may seek relief for 12 such violation by filing a complaint with the Sec- 13 retary under paragraph (5). 14 ‘‘(4) STATUTE OF LIMITATIONS.— 15 ‘‘(A) IN GENERAL.—An employee may take 16 the action permitted by paragraph (3) not later 17 than 180 days after the later of— 18 ‘‘(i) the date on which an alleged vio- 19 lation of paragraph (1) or (2) occurs; or 20 ‘‘(ii) the date on which the employee 21 knows or should reasonably have known 22 that such alleged violation occurred. 23 ‘‘(B) REPEAT VIOLATION.—Except in 24 cases when the employee has been discharged, 25 VerDate Sep 11 2014 19:14 Feb 21, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1074.IH H1074 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 1074 IH a violation of paragraph (1) or (2) shall be con- 1 sidered to have occurred on the last date an al- 2 leged repeat violation occurred. 3 ‘‘(5) INVESTIGATION.— 4 ‘‘(A) IN GENERAL.—An employee may, 5 within the time period required under para- 6 graph (4)(A), file a complaint with the Sec- 7 retary alleging a violation of paragraph (1) or 8 (2). If the complaint alleges a prima facie case, 9 the Secretary shall conduct an investigation of 10 the allegations in the complaint, which— 11 ‘‘(i) shall include— 12 ‘‘(I) interviewing the complain- 13 ant; 14 ‘‘(II) providing the respondent an 15 opportunity to— 16 ‘‘(aa) submit to the Sec- 17 retary a written response to the 18 complaint; and 19 ‘‘(bb) meet with the Sec- 20 retary to present statements from 21 witnesses or provide evidence; 22 and 23 ‘‘(III) providing the complainant 24 an opportunity to— 25 VerDate Sep 11 2014 19:14 Feb 21, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H1074.IH H1074 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 1074 IH ‘‘(aa) receive any statements 1 or evidence provided to the Sec- 2 retary; 3 ‘‘(bb) meet with the Sec- 4 retary; and 5 ‘‘(cc) rebut any statements 6 or evidence; and 7 ‘‘(ii) may include issuing subpoenas 8 for the purposes of such investigation. 9 ‘‘(B) DECISION.—Not later than 90 days 10 after the filing of the complaint, the Secretary 11 shall— 12 ‘‘(i) determine whether reasonable 13 cause exists to believe that a violation of 14 paragraph (1) or (2) has occurred; and 15 ‘‘(ii) issue a decision granting or de- 16 nying relief. 17 ‘‘(6) PRELIMINARY ORDER FOLLOWING INVES- 18 TIGATION.—If, after completion of an investigation 19 under paragraph (5)(A), the Secretary finds reason- 20 able cause to believe that a violation of paragraph 21 (1) or (2) has occurred, the Secretary shall issue a 22 preliminary order providing relief authorized under 23 paragraph (14) [Text truncated for display. 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