,,ii #aacth ,,congress #ast ,session ,s4 #ffe ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,march #bb1 #bjac ,mrs4 ,murray 7for herself1 ,mr4 ,brown1 ,mr4 ,franken1 ,mr4 ,harkin1 ,mr4 ,lautenberg1 ,mr4 ,rockefeller1 ,mrs4 ,shaheen1 ,mr4 ,whitehouse1 ,mr4 ,casey1 ,ms4 ,warren1 and ,mr4 ,cardin7 introduced the following bill2 which was read twice and referred to the ,committee on ,health1 ,education1 ,labor1 and ,pensions ,a ,,bill ,to amend the ,occupational ,safety and ,health ,act of #aigj to expand coverage under the ,act1 to increase protections for whistleblowers1 to increase penalties for high gravity violations1 to adjust penalties for inflation1 to provide rights for victims or their family members1 and for other purposes4 #a4 ,short title2 table of contents 7a7 ,short title ,this ,act may be cited as the ,protecting ,america's ,workers ,act4 7b7 ,table of contents ,the table of contents for this ,act is as follows3 ,sec4 #a4 ,short title2 table of contents4 ,sec4 #b4 ,references4 ,,title ,i--,coverage of public employees and application of ,act ,sec4 #aja4 ,coverage of public employees4 ,sec4 #ajb4 ,application of ,act4 ,,title ,,ii--,increasing ,whistleblower ,protections ,sec4 #bja4 ,enhanced protections from retaliation4 ,,title ,,iii--,improving reporting1 inspection1 and enforcement ,sec4 #cja4 ,employer duties4 ,sec4 #cjb4 ,recording and reporting of occupational injuries and illnesses4 ,sec4 #cjc4 ,posting of employee rights4 ,sec4 #cjd4 ,employer reporting of work-related deaths and hospitalizations and prohibition on discouraging employee reports of injury or illness4 ,sec4 #cje4 ,no loss of employee pay for inspections4 ,sec4 #cjf4 ,investigations of fatalities and significant incidents4 ,sec4 #cjg4 ,prohibition on unclassified citations4 ,sec4 #cjh4 ,victims' rights4 ,sec4 #cji4 ,right to contest citations and penalties4 ,sec4 #caj4 ,correction of serious1 willful1 or repeated violations pending contest and procedures for a stay4 ,sec4 #caa4 ,conforming amendments4 ,sec4 #cab4 ,civil penalties4 ,sec4 #cac4 ,criminal penalties4 ,sec4 #cad4 ,prejudgment interest4 ,,title ,,iv--,state plans ,sec4 #dja4 ,concurrent enforcement authority and review of ,state occupational safety and health plans4 ,,title ,v--,national ,institute for ,occupational ,safety and ,health ,sec4 #eja4 ,health ,hazard ,evaluations by the ,national ,institute for ,occupational ,safety and ,health4 ,,title ,,vi--,effective date ,sec4 #fja4 ,effective date4 #b4 ,references ,except as otherwise expressly provided1 whenever in this ,act an amendment or repeal is expressed in terms of an amendment to1 or repeal of1 a section or other provision1 the reference shall be considered to be made to a section or other provision of the ,occupational ,safety and ,health ,act of #aigj 7#bi ,u4,s4,c4 #fea et seq474 ,i ,coverage of public employees and application of ,act #aja4 ,coverage of public employees 7a7 ,in ,general ,section #c7e7 7#bi ,u4,s4,c4 #feb7e77 is amended by striking but does not include and all that follows through the period at the end and inserting including the ,united ,states1 a ,state1 or a political subdivision of a ,state44 7b7 ,construction ,nothing in this ,act shall be construed to affect the application of section #ah of the ,occupational ,safety and ,health ,act of #aigj 7#bi ,u4,s4,c4 #ffg74 #ajb4 ,application of ,act ,section #d7;b7 7#bi ,u4,s4,c4 #fec7;b77#a77 is amended-- 7#a7 by redesignating paragraphs 7#b71 7#c71 and 7#d7 as paragraphs 7#e71 7#f71 and 7#g71 respectively2 and 7#b7 by striking paragraph 7#a7 and inserting the following3 7#a7 ,if a ,federal agency has promulgated and is enforcing a standard or regulation affecting occupational safety or health of some or all of the employees within that agency's regulatory jurisdiction1 and the ,secretary determines that such a standard or regulation as promulgated and the manner in which the standard or regulation is being enforced provides protection to those employees that is at least as effective as the protection provided to those employees by this ,act and the ,secretary's enforcement of this ,act1 the ,secretary may publish a certification notice in the ,federal ,register4 ,the notice shall set forth that determination and the reasons for the determination and certify that the ,secretary has ceded jurisdiction to that ,federal agency with respect to the specified standard or regulation affecting occupational safety or health4 ,in determining whether to cede jurisdiction to a ,federal agency1 the ,secretary shall seek to avoid duplication of1 and conflicts between1 health and safety requirements4 ,such certification shall remain in effect unless and until rescinded by the ,secretary4 7#b7 ,the ,secretary shall1 by regulation1 establish procedures by which any person who may be adversely affected by a decision of the ,secretary certifying that the ,secretary has ceded jurisdiction to another ,federal agency pursuant to paragraph 7#a7 may petition the ,secretary to rescind a certification notice under paragraph 7#a74 ,upon receipt of such a petition1 the ,secretary shall investigate the matter involved and shall1 within #ij days after receipt of the petition1 publish a decision with respect to the petition in the ,federal ,register4 7#c7 ,any person who may be adversely affected by-- 7,a7 a decision of the ,secretary certifying that the ,secretary has ceded jurisdiction to another ,federal agency pursuant to paragraph 7#a72 or 7,b7 a decision of the ,secretary denying a petition to rescind such a certification notice under paragraph 7#a71 may1 not later than #fj days after such decision is published in the ,federal ,register1 file a petition challenging such decision with the ,united ,states court of appeals for the circuit in which such person resides or such person has a principal place of business1 for judicial review of such decision4 ,a copy of the petition shall be forthwith transmitted by the clerk of the court to the ,secretary4 ,the ,secretary's decision shall be set aside if found to be arbitrary1 capricious1 an abuse of discretion1 or otherwise not in accordance with law4 7#d7 ,nothing in this ,act shall apply to working conditions covered by the ,federal ,mine ,safety and ,health ,act of #aigg 7#cj ,u4,s4,c4 #hja et seq474 4 ,,ii ,increasing ,whistleblower ,protections #bja4 ,enhanced protections from retaliation 7a7 ,employee actions ,section #aa7;c77#a7 7#bi ,u4,s4,c4 #ffj7;c77#a77 is amended-- 7#a7 by striking discharge and all that follows through because such and inserting the following3 discharge or cause to be discharged1 or in any manner discriminate against or cause to be discriminated against1 any employee because-- 7,a7 such 2 7#b7 by striking this ,act or has and inserting the following3 this ,act2 7,b7 such employee has 2 7#c7 by striking in any such proceeding or because of the exercise and inserting the following3 before ,congress or in any ,federal or ,state proceeding related to safety or health2 7,c7 such employee has refused to violate any provision of this ,act2 or 7,d7 of the exercise 2 and 7#d7 by inserting before the period at the end the following3 1 including the reporting of any injury1 illness1 or unsafe condition to the employer1 agent of the employer1 safety and health committee involved1 or employee safety and health representative involved4 7b7 ,prohibition of retaliation ,section #aa7;c7 7#bi ,u4,s4,c4 #ffj7;c77 is amended by striking paragraph 7#b7 and inserting the following3 7#b7 ,prohibition of retaliation 7,a7 ,no person shall discharge1 or cause to be discharged1 or in any manner discriminate against1 or cause to be discriminated against1 an employee for refusing to perform the employee's duties if the employee has a reasonable apprehension that performing such duties would result in serious injury to1 or serious impairment of the health of1 the employee or other employees4 7,b7 ,for purposes of subparagraph 7,a71 the circumstances causing the employee's good-faith belief that performing such duties would pose a safety or health hazard shall be of such a nature that a reasonable person1 under the circumstances confronting the employee1 would conclude that there is such a hazard4 ,in order to qualify for protection under this paragraph1 the employee1 when practicable1 shall have communicated or attempted to communicate the safety or health concern to the employer and have not received from the employer a response reasonably calculated to allay such concern4 4 7c7 ,procedure ,section #aa7;c7 7#bi ,u4,s4,c4 #ffj7;c77 is amended by striking paragraph 7#c7 and inserting the following3 7#c7 ,complaint ,any employee who believes that the employee has been discharged1 disciplined1 or otherwise discriminated against by any person in violation of paragraph 7#a7 or 7#b7 may seek relief for such violation by filing a complaint with the ,secretary under paragraph 7#e74 7#d7 ,statute of limitations 7,a7 ,in general ,an employee may take the action permitted by paragraph 7#c7 not later than #ahj days after the later of-- 7i7 the date on which an alleged violation of paragraph 7#a7 or 7#b7 occurs2 or 7ii7 the date on which the employee knows or should reasonably have known that such alleged violation occurred4 7,b7 ,repeat violation ,except in cases when the employee has been discharged1 a violation of paragraph 7#a7 or 7#b7 shall be considered to have occurred on the last date an alleged repeat violation occurred4 7#e7 ,investigation 7,a7 ,in general ,an employee may1 within the time period required under paragraph 7#d71 file a complaint with the ,secretary alleging a violation of paragraph 7#a7 or 7#b74 ,if the complaint alleges a prima facie case1 the ,secretary shall conduct an investigation of the allegations in the complaint1 which-- 7i7 shall include-- 7,i7 interviewing the complainant2 7,,ii7 providing the respondent an opportunity to-- 7aa7 submit to the ,secretary a written response to the complaint2 and 7bb7 meet with the ,secretary to present statements from witnesses or provide evidence2 and 7,,iii7 providing the complainant an opportunity to-- 7aa7 receive any statements or evidence provided to the ,secretary2 7bb7 meet with the ,secretary2 and 7cc7 rebut any statements or evidence2 and 7ii7 may include issuing subpoenas for the purposes of such investigation4 7,b7 ,decision ,not later than #ij days after the filing of the complaint1 the ,secretary shall-- 7i7 determine whether reasonable cause exists to believe that a violation of paragraph 7#a7 or 7#b7 has occurred2 and 7ii7 issue a decision granting or denying relief4 7#f7 ,preliminary order following investigation ,if1 after completion of an investigation under paragraph 7#e77;,a71 the ,secretary finds reasonable cause to believe that a violation of paragraph 7#a7 or 7#b7 has occurred1 the ,secretary shall issue a preliminary order providing relief authorized under paragraph 7#ad7 at the same time the ,secretary issues a decision under paragraph 7#e77;,b74 ,if a de novo hearing is not requested within the time period required under paragraph 7#g77;,a77i71 such preliminary order shall be deemed a final order of the ,secretary and is not subject to judicial review4 7#g7 ,hearing 7,a7 ,request for hearing 7i7 ,in general ,a de novo hearing on the record before an administrative law judge may be requested-- 7,i7 by the complainant or respondent within #cj days after receiving notification of a decision granting or denying relief issued under paragraph 7#e77;,b7 or paragraph 7#f7 respectively2 7,,ii7 by the complainant within #cj days after the date the complaint is dismissed without investigation by the ,secretary under paragraph 7#e72 or 7,,iii7 by the complainant within #abj days after the date of filing the complaint1 if the ,secretary has not issued a decision under paragraph 7#e77;,b74 7ii7 ,reinstatement order ,the request for a hearing shall not operate to stay any preliminary reinstatement order issued under paragraph 7#f74 7,b7 ,procedures 7i7 ,in general ,a hearing requested under this paragraph shall be conducted expeditiously and in accordance with rules established by the ,secretary for hearings conducted by administrative law judges4 7ii7 ,subpoenas2 production of evidence ,in conducting any such hearing1 the administrative law judge may issue subpoenas4 ,the respondent or complainant may request the issuance of subpoenas that require the deposition of1 or the attendance and testimony of1 witnesses and the production of any evidence 7including any books1 papers1 documents1 or recordings7 relating to the matter under consideration4 7iii7 ,decision ,the administrative law judge shall issue a decision not later than #ij days after the date on which a hearing was requested under this paragraph and promptly notify1 in writing1 the parties and the ,secretary of such decision1 including the findings of fact and conclusions of law4 ,if the administrative law judge finds that a violation of paragraph 7#a7 or 7#b7 has occurred1 the judge shall issue an order for relief under paragraph 7#ad74 ,if review under paragraph 7#h7 is not timely requested1 such order shall be deemed a final order of the ,secretary that is not subject to judicial review4 7#h7 ,administrative appeal 7,a7 ,in general ,not later than #cj days after the date of notification of a decision and order issued by an administrative law judge under paragraph 7#g71 the complainant or respondent may file1 with objections1 an administrative appeal with an administrative review body designated by the ,secretary 7referred to in this paragraph as the review board74 7,b7 ,standard of ,review ,in reviewing the decision and order of the administrative law judge1 the review board shall affirm the decision and order if it is determined that the factual findings set forth therein are supported by substantial evidence and the decision and order are made in accordance with applicable law4 7,c7 ,decisions ,if the review board grants an administrative appeal1 the review board shall issue a final decision and order affirming or reversing1 in whole or in part1 the decision under review by not later than #ij days after receipt of the administrative appeal4 ,if it is determined that a violation of paragraph 7#a7 or 7#b7 has occurred1 the review board shall issue a final decision and order providing relief authorized under paragraph 7#ad74 ,such decision and order shall constitute final agency action with respect to the matter appealed4 7#i7 ,settlement in the administrative process 7,a7 ,in general ,at any time before issuance of a final order1 an investigation or proceeding under this subsection may be terminated on the basis of a settlement agreement entered into by the parties4 7,b7 ,public policy considerations ,neither the ,secretary1 an administrative law judge1 nor the review board conducting a hearing under this subsection shall accept a settlement that contains conditions conflicting with the rights protected under this ,act or that are contrary to public policy1 including a restriction on a complainant's right to future employment with employers other than the specific employers named in a complaint4 7#aj7 ,inaction by the review board or administrative law judge 7,a7 ,in general ,the complainant may bring a de novo action described in subparagraph 7,b7 if-- 7i7 an administrative law judge has not issued a decision and order within the #ij-;day time period required under paragraph 7#g77;,b77iii72 or 7ii7 the review board has not issued a decision and order within the #ij-;day time period required under paragraph 7#h77;,c74 7,b7 ,de novo action ,such de novo action may be brought at law or equity in the ,united ,states district court for the district where a violation of paragraph 7#a7 or 7#b7 allegedly occurred or where the complainant resided on the date of such alleged violation4 ,the court shall have jurisdiction over such action without regard to the amount in controversy and to order appropriate relief under paragraph 7#ad74 ,such action shall1 at the request of either party to such action1 be tried by the court with a jury4 7#aa7 ,judicial review 7,a7 ,timely appeal to the court of appeals ,any party adversely affected or aggrieved by a final decision and order issued under this subsection may obtain review of such decision and order in the ,united ,states ,court of ,appeals for the circuit where the violation1 with respect to which such final decision and order was issued1 allegedly occurred or where the complainant resided on the date of such alleged violation4 ,to obtain such review1 a party shall file a petition for review not later than #fj days after the final decision and order was issued4 ,such review shall conform to chapter #g of title #e1 ,united ,states ,code4 ,the commencement of proceedings under this subparagraph shall not1 unless ordered by the court1 operate as a stay of the final decision and order4 7,b7 ,limitation on collateral attack ,an order and decision with respect to which review may be obtained under subparagraph 7,a7 shall not be subject to judicial review in any criminal or other civil proceeding4 7#ab7 ,enforcement of order ,if a respondent fails to comply with an order issued under this subsection1 the ,secretary or the complainant on whose behalf the order was issued may file a civil action for enforcement in the ,united ,states district court for the district in which the violation was found to occur to enforce such order4 ,if both the ,secretary and the complainant file such action1 the action of the ,secretary shall take precedence4 ,the district court shall have jurisdiction to grant all appropriate relief described in paragraph 7#ad74 7#ac7 ,burdens of proof 7,a7 ,criteria for determination ,in making a determination or adjudicating a complaint pursuant to this subsection1 the ,secretary or an administrative law judge1 review board1 or court may determine that a violation of paragraph 7#a7 or 7#b7 has occurred only if the complainant demonstrates that any conduct described in paragraph 7#a7 or 7#b7 with respect to the complainant was a contributing factor in the adverse action alleged in the complaint4 7,b7 ,prohibition ,notwithstanding subparagraph 7,a71 a decision or order that is favorable to the complainant shall not be issued in any administrative or judicial action pursuant to this subsection if the respondent demonstrates by clear and convincing evidence that the respondent would have taken the same adverse action in the absence of such conduct4 7#ad7 ,relief 7,a7 ,order for relief ,if the ,secretary or an administrative law judge1 review board1 or court determines that a violation of paragraph 7#a7 or 7#b7 has occurred1 the ,secretary1 administrative law judge1 review board1 or court1 respectively1 shall have jurisdiction to order all appropriate relief1 including injunctive relief1 compensatory and exemplary damages1 including-- 7i7 affirmative action to abate the violation2 7ii7 reinstatement without loss of position or seniority1 and restoration of the terms1 rights1 conditions1 and privileges associated with the complainant's employment1 including opportunities for promotions to positions with equivalent or better compensation for which the complainant is qualified2 7iii7 compensatory and consequential damages sufficient to make the complainant whole1 7including back pay1 prejudgment interest1 and other damages72 and 7iv7 expungement of all warnings1 reprimands1 or derogatory references that have been placed in paper or electronic records or databases of any type relating to the actions by the complainant that gave rise to the unfavorable personnel action1 and1 at the complainant's direction1 transmission of a copy of the decision on the complaint to any person whom the complainant reasonably believes may have received such unfavorable information4 7,b7 ,attorneys' fees and costs ,if the ,secretary1 administrative law judge1 review board1 or court grants an order for relief under subparagraph 7,a71 the ,secretary1 administrative law judge1 review board1 or court1 respectively1 shall assess1 at the request of the employee against the employer-- 7i7 reasonable attorneys' fees2 and 7ii7 costs 7including expert witness fees7 reasonably incurred1 as determined by the ,secretary1 administrative law judge1 review board1 or court1 respectively1 in connection with bringing the complaint upon which the order was issued4 7#ae7 ,procedural rights ,the rights and remedies provided for in this subsection may not be waived by any agreement1 policy1 form1 or condition of employment1 including by any pre-dispute arbitration agreement or collective bargaining agreement4 7#af7 ,savings ,nothing in this subsection shall be construed to diminish the rights1 privileges1 or remedies of any employee who exercises rights under any ,federal or ,state law or common law1 or under any collective bargaining agreement4 7#ag7 ,election of venue 7,a7 ,in general ,an employee of an employer who is located in a ,state that has a ,state plan approved under section #ah may file a complaint alleging a violation of paragraph 7#a7 or 7#b7 by such employer with-- 7i7 the ,secretary under paragraph 7#e72 or 7ii7 a ,state plan administrator in such ,state4 7,b7 ,referrals ,if-- 7i7 the ,secretary receives a complaint pursuant to subparagraph 7,a77i71 the ,secretary shall not refer such complaint to a ,state plan administrator for resolution2 or 7ii7 a ,state plan administrator receives a complaint pursuant to subparagraph 7,a77ii71 the ,state plan administrator shall not refer such complaint to the ,secretary for resolution4 4 7d7 ,relation to enforcement ,section #ag7;j7 7#bi ,u4,s4,c4 #fff7;j77 is amended by inserting before the period the following3 1 including the history of violations under section #aa7;c74 ,,iii ,improving reporting1 inspection1 and enforcement #cja4 ,employer duties ,section #e7;a77#a7 7#bi ,u4,s4,c4 #fed7;a77#a77 is amended to read as follows3 7#a7 shall furnish employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to each employee of the employer or any other individual performing work at the place of employment2 and 4 #cjb4 ,recording and reporting of occupational injuries and illnesses ,section #h7;c77#b7 7#bi ,u4,s4,c4 #feg7;c77#b77 is amended-- 7#a7 by striking ,the ,secretary1 and inserting 7,a7 ,the ,secretary12 and 7#b7 by adding at the end the following3 7,b7 ,not later than #ahj days after the date of enactment of the ,protecting ,america's ,workers ,act1 the ,secretary shall revise the regulations in part #aijd of title #bi1 ,code of ,federal ,regulations1 concerning the recording and reporting of occupational injuries and illnesses under this ,act1 to require site-controlling employers to keep a site log for all recordable injuries and illnesses occurring among all employees on the particular site1 including employees of the site-controlling employer or others who are performing work at the particular site 7including independent contractors74 7,c7 ,as used in this paragraph1 the term site-controlling employer means the employer that has primary control over a worksite at which employees of more than one employer work1 such as by hiring or coordinating the work of other employers working at the site4 4 #cjc4 ,posting of employee rights ,section #h7;c77#a7 7#bi ,u4,s4,c4 #feg7;c77#a77 is amended by adding at the end the following new sentence3 ,such regulations shall include provisions requiring employers to post for employees information on the protections afforded under section #aa7;c744 #cjd4 ,employer reporting of work-related deaths and hospitalizations and prohibition on discouraging employee reports of injury or illness ,section #h7;c77#b7 7#bi ,u4,s4,c4 #feg7;c77#b77 is amended by adding at the end the following new sentences3 ,such regulations shall require employers to promptly notify the ,secretary of any work-related death or work-related injury or illness that results in the in-patient hospitalization of an employee for medical treatment4 ,such regulations shall also prohibit the employer from adopting or implementing policies or practices by the employer that have the effect of discouraging accurate recordkeeping and the reporting of work-related injuries or illnesses by any employee or in any manner discriminates or provides for adverse action against any employee for reporting a work-related injury or illness44 #cje4 ,no loss of employee pay for inspections ,section #h7;e7 7#bi ,u4,s4,c4 #feg7;e77 is amended by inserting after the first sentence the following3 ,time spent by an employee participating in or aiding any such inspection shall be deemed to be hours worked and no employee shall suffer any loss of wages1 benefits1 or other terms and conditions of employment for having participated in or aided any such inspection44 #cjf4 ,investigations of fatalities and significant incidents ,section #h 7#bi ,u4,s4,c4 #feg7 is amended by adding at the end the following new subsection3 7i7 ,investigation of fatalities and serious incidents 7#a7 ,in general ,the ,secretary shall investigate any significant incident or an incident resulting in death that occurs in a place of employment4 7#b7 ,appropriate measures ,if a significant incident or an incident resulting in death occurs in a place of employment1 the employer shall promptly notify the ,secretary of the incident involved and shall take appropriate measures to prevent the destruction or alteration of any evidence that would assist in investigating the incident4 ,the appropriate measures required by this paragraph do not prevent an employer from taking action on a worksite to prevent injury to employees or substantial damage to property or to avoid disruption of essential services necessary to public safety4 ,if an employer takes such action1 the employer shall notify the ,secretary of the action in a timely fashion4 7#c7 ,definitions ,in this subsection3 7,a7 ,incident resulting in death ,the term incident resulting in death means an incident that results in the death of an employee4 7,b7 ,significant incident ,the term significant incident means an incident that results in the in-patient hospitalization of #b or more employees for medical treatment4 4 #cjg4 ,prohibition on unclassified citations ,section #i 7#bi ,u4,s4,c4 #feh7 is amended by adding at the end the following3 7d7 ,no citation for a violation of this ,act may be issued1 modified1 or settled under this section without a designation enumerated in section #ag with respect to such violation4 4 #cjh4 ,victims' rights ,the ,act is amended by inserting after section #i 7#bi ,u4,s4,c4 #feh7 the following3 #i;,a4 ,victims' rights 7a7 ,rights before the ,secretary ,a victim1 or the representative of a victim1 shall be afforded the right1 with respect to an inspection or investigation conducted under section #h1 to-- 7#a7 meet with the ,secretary regarding the inspection or investigation conducted under such section before the ,secretary's decision to issue a citation or take no action2 7#b7 receive1 at no cost1 a copy of any citation or report1 issued as a result of such inspection or investigation1 at the same time as the employer receives such citation or report2 7#c7 be informed of any notice of contest or addition of parties to the proceedings filed under section #aj7;c72 and 7#d7 be provided notification of the date and time or any proceedings1 service of pleadings1 and other relevant documents1 and an explanation of the rights of the employer1 employee and employee representative1 and victim to participate in proceedings conducted under section #aj7;c74 7b7 ,rights before the ,commission ,upon request1 a victim or representative of a victim shall be afforded the right with respect to a work-related bodily injury or death to-- 7#a7 be notified of the time and date of any proceeding before the ,commission2 7#b7 receive pleadings and any decisions relating to the proceedings2 and 7#c7 be provided an opportunity to appear and make a statement in accordance with the rules prescribed by the ,commission4 7c7 ,modification of citation ,before entering into an agreement to withdraw or modify a citation issued as a result of an inspection or investigation of an incident under section #h1 the ,secretary shall notify a victim or representative of a victim and provide the victim or representative of a victim with an opportunity to appear and make a statement before the parties conducting settlement negotiations4 ,in lieu of an appearance1 the victim or representative of the victim may elect to submit a letter to the ,secretary and the parties4 7d7 ,secretary ,procedures ,the ,secretary shall establish procedures-- 7#a7 to inform victims of their rights under this section2 and 7#b7 for the informal review of any claim of a denial of such a right4 7e7 ,commission procedures and considerations ,the ,commission shall-- 7#a7 establish procedures relating to the rights of victims to be heard in proceedings before the ,commission2 and 7#b7 in rendering any decision1 provide due consideration to any statement or information provided by any victim before the ,commission4 7f7 ,family liaisons ,the ,secretary shall designate at least #a employee at each area office of the ,occupational ,safety and ,health ,administration to serve as a family liaison to-- 7#a7 keep victims informed of the status of investigations1 enforcement actions1 and settlement negotiations2 and 7#b7 assist victims in asserting their rights under this section4 7g7 ,definition ,in this section1 the term victim means-- 7#a7 an employee1 including a former employee1 who has sustained a work-related injury or illness that is the subject of an inspection or investigation conducted under section #h2 or 7#b7 a family member 7as further defined by the ,secretary7 of a victim described in paragraph 7#a71 if-- 7,a7 the victim dies as a result of a incident that is the subject of an inspection or investigation conducted under section #h2 or 7,b7 the victim sustains a work-related injury or illness that is the subject of an inspection or investigation conducted under section #h1 and the victim because of incapacity cannot reasonably exercise the rights under this section4 4 #cji4 ,right to contest citations and penalties ,section #aj7;c7 7#bi ,u4,s4,c4 #fei7;c77 is amended-- 7#a7 in the first sentence-- 7,a7 by inserting after that he intends to contest a citation issued under section 7#i77;a7 the following3 7or a modification of a citation issued under this section72 7,b7 by inserting after the issuance of a citation under section #i7;a7 the following3 7including a modification of a citation issued under this section72 and 7,c7 by inserting after files a notice with the ,secretary alleging the following3 that the citation fails properly to designate the violation as serious1 willful1 or repeated1 that the proposed penalty is not adequate1 or2 7#b7 by inserting after the first sentence1 the following3 ,the pendency of a contest before the ,commission shall not bar the ,secretary from inspecting a place of employment or from issuing a citation under section #i42 and 7#c7 by amending the last sentence-- 7,a7 by inserting employers and after ,commission shall provide2 and 7,b7 by inserting before the period at the end 1 and notification of any modification of a citation4 #caj4 ,correction of serious1 willful1 or repeated violations pending contest and procedures for a stay ,section #aj 7#bi ,u4,s4,c4 #fei7 is amended by adding at the end the following3 7d7 ,correction of serious1 willful1 or repeated violations pending contest and procedures for a stay 7#a7 ,period permitted for correction of serious1 willful1 or repeated violations ,for each violation which the ,secretary designates as serious1 willful1 or repeated1 the period permitted for the correction of the violation shall begin to run upon receipt of the citation4 7#b7 ,filing of a motion of contest ,the filing of a notice of contest by an employer-- 7,a7 shall not operate as a stay of the period for correction of a violation designated as serious1 willful1 or repeated2 and 7,b7 may operate as a stay of the period for correction of a violation not designated by the ,secretary as serious1 willful1 or repeated4 7#c7 ,criteria and rules of procedure for stays 7,a7 ,motion for a stay ,an employer that receives a citation alleging a violation designated as serious1 willful1 or repeated and that files a notice of contest to the citation asserting that the time set for abatement of the alleged violation is unreasonable or challenging the existence of the alleged violation may file with the ,commission a motion to stay the period for the abatement of the violation4 7,b7 ,criteria ,in determining whether a stay should be issued on the basis of a motion filed under subparagraph 7,a71 the ,commission may grant a stay only if the employer has demonstrated-- 7i7 a substantial likelihood of success on the areas contested under subparagraph 7,a72 and 7ii7 that a stay will not adversely affect the health and safety of workers4 7,c7 ,rules of procedure ,the ,commission shall develop rules of procedure for conducting a hearing on a motion filed under subparagraph 7,a7 on an expedited basis4 ,at a minimum1 such rules shall provide3 7i7 ,that a hearing before an administrative law judge shall occur not later than #ae days following the filing of the motion for a stay 7unless extended at the request of the employer71 and shall provide for a decision on the motion not later than #ae days following the hearing 7unless extended at the request of the employer74 7ii7 ,that a decision of an administrative law judge on a motion for stay is rendered on a timely basis4 7iii7 ,that if a party is aggrieved by a decision issued by an administrative law judge regarding the stay1 such party has the right to file an objection with the ,commission not later than #e days after receipt of the administrative law judge's decision4 ,within #aj days after receipt of the objection1 a ,commissioner1 if a quorum is seated pursuant to section #ab7;f71 shall decide whether to grant review of the objection4 ,if1 within #aj days after receipt of the objection1 no decision is made on whether to review the decision of the administrative law judge1 the ,commission declines to review such decision1 or no quorum is seated1 the decision of the administrative law judge shall become a final order of the ,commission4 ,if the ,commission grants review of the objection1 the ,commission shall issue a decision regarding the stay not later than #cj days after receipt of the objection4 ,if the ,commission fails to issue such decision within #cj days1 the decision of the administrative law judge shall become a final order of the ,commission4 7iv7 ,for notification to employees or representatives of affected employees of requests for such hearings and shall provide affected employees or representatives of affected employees an opportunity to participate as parties to such hearings4 4 #caa4 ,conforming amendments 7a7 ,violations designated as serious1 willful1 or repeated ,the first sentence of section #aj7;b7 of the ,act 7#bi ,u4,s4,c4 #fei7;b77 is amended by inserting 1 with the exception of violations designated as serious1 willful1 or repeated1 after 7which period shall not begin to run4 7b7 ,judicial review ,the first sentence of section #aa7;a7 7#bi ,u4,s4,c4 #ffj7;a77 is amended-- 7#a7 by inserting 7or the failure of the ,commission1 including an administrative law judge1 to make a timely decision on a request for a stay under section #aj7;d77 after an order of the ,commission2 7#b7 by striking subsection 7c7 and inserting subsection 7c7 or 7d72 and 7#c7 by inserting 7or in the case of a petition from a final ,commission order regarding a stay under section #aj7;d71 #ae days7 after sixty days4 7c7 ,failure ,to correct violations ,section #ag7;d7 7#bi ,u4,s4,c4 #fff7;d77 is amended to read as follows3 7d7 ,any employer who fails to correct a violation designated by the ,secretary as serious1 willful1 or repeated and for which a citation has been issued under section #i7;a7 within the period permitted for its correction 7and a stay has not been issued by the ,commission under section #aj7;d77 may be assessed a civil penalty of not more than #g1jjj for each day during which such failure or violation continues4 ,any employer who fails to correct any other violation for which a citation has been issued under section #i7;a7 within the period permitted for its correction 7which period shall not begin to run until the date of the final order of the ,commission in the case of any review proceeding under section #aj initiated by the employer in good faith and not solely for delay of avoidance of penalties7 may be assessed a civil penalty of not more than #g1jjj for each day during which such failure or violation continues4 4 #cab4 ,civil penalties 7a7 ,in ,general ,section #ag 7#bi ,u4,s4,c4 #fff7 is amended-- 7#a7 in subsection 7a7-- 7,a7 by striking #gj1jjj and inserting #abj1jjj2 7,b7 by striking #e1jjj and inserting #h1jjj2 and 7,c7 by adding at the end the following3 ,in determining whether a violation is repeated1 the ,secretary or the ,commission shall consider the employer's history of violations under this ,act and under ,state occupational safety and health plans established under section #ah4 ,if such a willful or repeated violation caused or contributed to the death of an employee1 such civil penalty amounts shall be increased to not more than #bej1jjj for each such violation1 but not less than #ej1jjj for each such violation1 except that for an employer with #be or fewer employees such penalty shall not be less than #be1jjj for each such violation42 7#b7 in subsection 7b7-- 7,a7 by striking #g1jjj and inserting #ab1jjj2 and 7,b7 by adding at the end the following3 ,if such a violation caused or contributed to the death of an employee1 such civil penalty amounts shall be increased to not more than #ej1jjj for each such violation1 but not less than #bj1jjj for each such violation1 except that for an employer with #be or fewer employees such penalty shall not be less than #aj1jjj for each such violation42 7#c7 in subsection 7c71 by striking #g1jjj and inserting #ab1jjj2 7#d7 in subsection 7d71 as amended by section #caa7;c71 by striking #g1jjj each place it occurs and inserting #ab1jjj2 7#e7 by redesignating subsections 7e7 through 7i7 and 7j7 through 7l71 as subsections 7f7 through 7j7 and 7l7 through 7n71 respectively2 and 7#f7 in subsection 7j7 7as so redesignated7 by striking #g1jjj and inserting #ab1jjj4 7b7 ,inflation ,adjustment ,section #ag 7#bi ,u4,s4,c4 #fff7 is further amended by inserting after subsection 7d7 the following3 7e7 ,amounts provided under this section for civil penalties shall be adjusted by the ,secretary at least once during each #d-year period beginning ,january #a1 #bjae1 to account for the percentage increase or decrease in the ,consumer ,price ,index for all urban consumers during such period4 4 #cac4 ,criminal penalties 7a7 ,in ,general ,section #ag 7#bi ,u4,s4,c4 #fff7 7as amended by section #cab7 is further amended-- 7#a7 by amending subsection 7f7 7as redesignated by section #cab7 to read as follows3 7f7 7#a7 ,any employer who knowingly violates any standard1 rule1 or order promulgated under section #f of this ,act1 or of any regulation prescribed under this ,act1 and that violation caused or significantly contributed to the death of any employee1 shall1 upon conviction1 be punished by a fine in accordance with title #ah1 ,united ,states ,code1 or by imprisonment for not more than #aj years1 or both1 except that if the conviction is for a violation committed after a first conviction of such person under this subsection or subsection 7j71 punishment shall be by a fine in accordance with title #ah1 ,united ,states ,code1 or by imprisonment for not more than #bj years1 or by both4 7#b7 ,for the purpose of this subsection1 the term employer means1 in addition to the definition contained in section #c of this ,act1 any officer or director4 2 7#b7 by amending subsection 7g7 7as redesignated by section #cab7 to read as follows3 7g7 ,unless otherwise authorized by this ,act1 any person that knowingly gives1 causes to give1 or attempts to give or cause to give1 advance notice of any inspection conducted under this ,act with the intention of impeding1 interfering with1 or adversely affecting the results of such inspection1 shall be fined under title #ah1 ,united ,states ,code1 imprisoned for not more than #e years1 or both4 2 7#c7 in subsection 7h7 7as redesignated by section #cab71 by striking fine of not more than #aj1jjj1 or by imprisonment for not more than six months1 and inserting fine in accordance with title #ah1 ,united ,states ,code1 or by imprisonment for not more than #e years12 and 7#d7 by inserting after subsection 7j7 7as redesignated by section #cab7 the following3 7k7 7#a7 ,any employer who knowingly violates any standard1 rule1 or order promulgated under section #f1 or any regulation prescribed under this ,act1 and that violation caused or significantly contributed to serious bodily harm to any employee but does not cause death to any employee1 shall1 upon conviction1 be punished by a fine in accordance with title #ah1 ,united ,states ,code1 or by imprisonment for not more than #e years1 or by both1 except that if the conviction is for a violation committed after a first conviction of such person under this subsection or subsection 7e71 punishment shall be by a fine in accordance with title #ah1 ,united ,states ,code1 or by imprisonment for not more than #aj years1 or by both4 7#b7 ,for the purpose of this subsection1 the term employer means1 in addition to the definition contained in section #c of this ,act1 any officer or director4 7#c7 ,for purposes of this subsection1 the term serious bodily harm means bodily injury or illness that involves-- 7,a7 a substantial risk of death2 7,b7 protracted unconsciousness2 7,c7 protracted and obvious physical disfigurement2 or 7,d7 protracted loss or impairment1 either temporary or permanent1 of the function of a bodily member1 organ1 or mental faculty4 4 7b7 ,jurisdiction ,for prosecution under ,state and local criminal laws ,section #ag is further amended by adding at the end the following3 7o7 ,nothing in this ,act shall preclude a ,state or local law enforcement agency from conducting criminal prosecutions in accordance with the laws of such ,state or locality4 4 #cad4 ,prejudgment interest ,section #ag7n7 7#bi ,u4,s4,c4 #fff7n77 7as redesignated by section #cab7 is amended by adding at the end the following3 ,pre-final order interest on such penalties shall begin to accrue on the date the party contests a citation issued under this ,act1 and shall end upon the issuance of the final order4 ,such pre-final order interest shall be calculated at the current underpayment rate determined by the ,secretary of the ,treasury pursuant to section #ffba of the ,internal ,revenue ,code of #aihf1 and shall be compounded daily4 ,post-final order interest shall begin to accrue #cj days after the date a final order of the ,commission or the court is issued1 and shall be charged at the rate of #h percent per year44 ,,iv ,state plans #dja4 ,concurrent enforcement authority and review of ,state occupational safety and health plans ,section #ah 7#bi ,u4,s4,c4 #ffh7 is amended-- 7#a7 by amending subsection 7f7 to read as follows3 7f7 7#a7 ,the ,secretary shall1 on the basis of reports submitted by the ,state agency and the ,secretary's own inspections1 make a continuing evaluation of the manner in which each ,state that has a plan approved under this section is carrying out such plan4 ,such evaluation shall include an assessment of whether the ,state continues to meet the requirements of subsection 7c7 of this section and any other criteria or indices of effectiveness specified by the ,secretary in regulations4 ,whenever the ,secretary finds1 on the basis of such evaluation1 that in the administration of the ,state plan there is a failure to comply substantially with any provision of the ,state plan 7or any assurance contained therein71 the ,secretary shall make an initial determination of whether the failure is of such a nature that the plan should be withdrawn or whether the failure is of such a nature that the ,state should be given the opportunity to remedy the deficiencies1 and provide notice of the ,secretary's findings and initial determination4 7#b7 ,if the ,secretary makes an initial determination to reassert and exercise concurrent enforcement authority while the ,state is given an opportunity to remedy the deficiencies1 the ,secretary shall afford the ,state an opportunity for a public hearing within #ae days of such request1 provided that such request is made not later than #aj days after ,secretary's notice to the ,state4 ,the ,secretary shall review and consider the testimony1 evidence1 or written comments1 and not later than #cj days following such hearing1 make a determination to affirm1 reverse1 or modify the ,secretary's initial determination to reassert and exercise concurrent enforcement authority under sections #h1 #i1 #aj1 #ac1 and #ag with respect to standards promulgated under section #f and obligations under section #e7;a74 ,following such a determination by the ,secretary1 or in the event that the ,state does not request a hearing within the time frame set forth in this paragraph1 the ,secretary may reassert and exercise such concurrent enforcement authority1 while a final determination is pending under paragraph 7#c7 or until the ,secretary has determined that the ,state has remedied the deficiencies as provided under paragraph 7#d74 ,such determination shall be published in the ,federal ,register4 ,the procedures set forth in subsection 7g7 shall not apply to a determination by the ,secretary to reassert and exercise such concurrent enforcement authority4 7#c7 ,if the ,secretary makes an initial determination that the plan should be withdrawn1 the ,secretary shall provide due notice and the opportunity for a hearing4 ,if based on the evaluation1 comments1 and evidence1 the ,secretary makes a final determination that there is a failure to comply substantially with any provision of the ,state plan 7or any assurance contained therein71 he shall notify the ,state agency of the withdrawal of approval of such plan and upon receipt of such notice such plan shall cease to be in effect1 but the ,state may retain jurisdiction in any case commenced before the withdrawal of the plan in order to enforce standards under the plan whenever the issues involved do not relate to the reasons for the withdrawal of the plan4 7#d7 ,if the ,secretary makes a determination that the ,state should be provided the opportunity to remedy the deficiencies1 the ,secretary shall provide the ,state an opportunity to respond to the ,secretary's findings and the opportunity to remedy such deficiencies within a time period established by the ,secretary1 not to exceed #a year4 ,the ,secretary may extend and revise the time period to remedy such deficiencies1 if the ,state's legislature is not in session during this #a-year time period1 or if the ,state demonstrates that it is not feasible to correct the deficiencies in the time period set by the ,secretary1 and the ,state has a plan to correct the deficiencies within a reasonable time period4 ,if the ,secretary finds that the ,state agency has failed to remedy such deficiencies within the time period specified by the ,secretary and that the ,state plan continues to fail to comply substantially with a provision of the ,state plan1 the ,secretary shall withdraw the ,state plan as provided for in paragraph 7#c74 2 and 7#b7 by adding at the end the following new subsection3 7i7 ,not later than #ah months after the date of enactment of this subsection1 and again #e years thereafter1 the ,comptroller ,general shall complete and issue a review of the effectiveness of ,state plans to develop and enforce safety and health standards to determine if they are at least as effective as the ,federal program and to evaluate whether the ,secretary's oversight of ,state plans is effective4 ,the ,comptroller ,general's evaluation shall assess-- 7#a7 the effectiveness of the ,secretary's oversight of ,state plans1 including the indices of effectiveness used by the ,secretary2 7#b7 whether the ,secretary's investigations in response to ,complaints ,about ,state ,plan ,administration 7,,caspa7 are adequate1 whether significant policy issues have been identified by headquarters and corrective actions are fully implemented by each ,state2 7#c7 whether the formula for the distribution of funds described in section #bc7;g7 to ,state programs is fair and adequate2 and 7#d7 whether ,state plans are as effective as the ,federal program in preventing occupational injuries1 illnesses1 and deaths1 and investigating discrimination complaints1 through an evaluation of at least #bj percent of approved ,state plans1 and which shall cover-- 7,a7 enforcement effectiveness1 including handling of fatalities1 serious incidents and complaints1 compliance with inspection procedures1 hazard recognition1 verification of abatement1 violation classification1 citation and penalty issuance1 including appropriate use of willful and repeat citations1 and employee involvement2 7,b7 inspections1 the number of programmed health and safety inspections at private and public sector establishments1 and whether the ,state targets the highest hazard private sector worksites and facilities in that ,state2 7,c7 budget and staffing1 including whether the ,state is providing adequate budget resources to hire1 train and retain sufficient numbers of qualified staff1 including timely filling of vacancies2 7,d7 administrative review1 including the quality of decisions1 consistency with ,federal precedence1 transparency of proceedings1 availability of decisions and records to the public1 adequacy of ,state defense1 and whether the ,state appropriately appeals adverse decisions2 7,e7 anti-discrimination1 including whether discrimination complaints are processed in a timely manner1 whether supervisors and investigators are properly trained to investigate discrimination complaints1 whether a case file review indicates merit cases are properly identified consistent with ,federal policy and procedure1 whether employees are notified of their rights1 and whether there is an effective process for employees to appeal the dismissal of a complaint2 7,f7 program administration1 including whether the ,state's standards and policies are at least as effective as the ,federal program and are updated in a timely manner1 and whether ,national ,emphasis ,programs that are applicable in such ,states are adopted and implemented in a manner that is at least as effective as the ,federal program2 7,g7 whether the ,state plan satisfies the requirements for approval set forth in this section and its implementing regulations2 and 7,h7 other such factors identified by the ,comptroller ,general1 or as requested by the ,committee on ,education and the ,workforce of the ,house of ,representatives or the ,committee on ,health1 ,education1 ,labor1 and ,pensions of the ,senate4 4 ,v ,national ,institute for ,occupational ,safety and ,health #eja4 ,health ,hazard ,evaluations by the ,national ,institute for ,occupational ,safety and ,health ,section #bj7;a77#f7 7#bi ,u4,s4,c4 #ffi7;a77#f77 is amended by striking the second sentence and inserting the following3 ,the ,secretary shall determine following a written request by any employer1 authorized representative of current or former employees1 physician1 other ,federal agency1 or ,state or local health department1 specifying with reasonable particularity the grounds on which the request is made1 whether any substance normally found in the place of employment has potentially toxic effects in such concentrations as used or found or whether any physical agents1 equipment1 or working condition found or used has potentially hazardous effects2 and shall submit such determination both to employers and affected employees as soon as possible44 ,,vi ,effective date #fja4 ,effective date 7a7 ,general ,rule ,except as provided for in subsection 7b71 this ,act and the amendments made by this ,act shall take effect not later than #ij days after the date of the enactment of this ,act4 7b7 ,exception for ,states and political subdivisions ,the following are exceptions to the effective date described in subsection 7a73 7#a7 ,a ,state that has a ,state plan approved under section #ah of the ,occupational ,safety and ,health ,act of #aigj 7#bi ,u4,s4,c4 #ffg7 shall amend its ,state plan to conform with the requirements of this ,act and the amendments made by this ,act not later than #ab months after the date of the enactment of this ,act4 ,the ,secretary of ,labor may extend the period for a ,state to make such amendments to its ,state plan by not more than #ab months1 if the ,state's legislature is not in session during the #ab-month period beginning with the date of the enactment of this ,act4 ,such amendments to the ,state plan shall take effect not later than #ij days after the adoption of such amendments by such ,state4 7#b7 ,this ,act and the amendments made by this ,act shall take effect not later than #cf months after the date of the enactment of this ,act with respect to a workplace of a ,state1 or a political subdivision of a ,state1 that does not have a ,state plan approved under such section #ah 7#bi ,u4,s4,c4 #ffg74