[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1237 Introduced in Senate (IS)]







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.

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

SECTION 1. SHORT TITLE; REFERENCE.

    (a) Short Title.--This Act may be cited as the ``Safety Advancement 
for Employees Act of 1997'' or the ``SAFE Act''.
    (b) Reference.--Whenever in this Act an amendment or repeal is 
expressed in terms of an amendment to, or repeal of, a section or other 
provision, the reference shall be considered to be made to a section or 
other provision of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 651 et seq.).

SEC. 2. PURPOSE.

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

SEC. 3. EMPLOYEE AND EMPLOYER PARTICIPATION PROGRAMS.

    Section 4 (29 U.S.C. 653) is amended by adding at the end the 
following:
    ``(c)(1) In order to further carry out the purpose of this Act to 
encourage employers and employees in their efforts to reduce 
occupational safety and health hazards, employers may establish 
employer and employee participation programs which exist for the sole 
purpose of addressing safe and healthful working conditions.
    ``(2) An entity created under a program described in paragraph (1) 
shall not constitute a labor organization for purposes of section 
8(a)(2) of the National Labor Relations Act (29 U.S.C. 158(a)(2)) or a 
representative for purposes of sections 1 and 2 of the Railway Labor 
Act (45 U.S.C. 151 and 151a).
    ``(3) Nothing in this subsection shall be construed to affect 
employer obligations under section 8(a)(5) of the National Labor 
Relations Act (29 U.S.C. 158(a)(5)) to deal with a certified or 
recognized employee representative with respect to health and safety 
matters to the extent otherwise required by law.''.

SEC. 4. ESTABLISHMENT OF SPECIAL ADVISORY COMMITTEE.

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

SEC. 5. THIRD PARTY CONSULTATION SERVICES PROGRAM.

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

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

    ``(a) Establishment of Program.--
            ``(1) In general.--Not later than 12 months after the date 
        of enactment of this section, the Secretary shall establish and 
        implement, by regulation, a program that qualifies individuals 
        to provide consultation services to employers to assist 
        employers in the identification and correction of safety and 
        health hazards in the workplaces of employers.
            ``(2) Eligibility.--Each of the following individuals shall 
        be eligible to be qualified under the program:
                    ``(A) An individual licensed by a State authority 
                as a physician, industrial hygienist, professional 
                engineer, safety engineer, safety professional, or 
                occupational nurse.
                    ``(B) An individual who has been employed as an 
                inspector for a State plan State or as a Federal 
                occupational safety and health inspector for not less 
                than a 5-year period.
                    ``(C) An individual qualified in an occupational 
                health or safety field by an organization whose program 
                has been accredited by a nationally recognized private 
                accreditation organization or by the Secretary.
                    ``(D) Other individuals determined to be qualified 
                by the Secretary.
            ``(3) Geographical scope of consultation services.--An 
        individual qualified under the program may provide consultation 
        services in any State.
    ``(b) Safety and Health Registry.--The Secretary shall develop and 
maintain a registry that includes all individuals that are qualified 
under the program to provide the consultation services described in 
subsection (a) and shall publish and make such registry readily 
available to the general public.
    ``(c) Disciplinary Actions.--
            ``(1) In general.--The Secretary may revoke the status of 
        an individual qualified under subsection (a) if the Secretary 
        determines that the individual--
                    ``(A) has failed to meet the requirements of the 
                program; or
                    ``(B) has committed malfeasance, gross negligence, 
                or fraud in connection with any consultation services 
                provided by the qualified individual.
    ``(d) Consultation Services.--
            ``(1) Scope of consultation services.--
                    ``(A) In general.--The consultation services 
                described in subsection (a), and provided by an 
                individual qualified under the program, shall include 
                an evaluation of the workplace of an employer to 
                determine if the employer is in compliance with the 
                requirements of this Act, including any regulations 
                promulgated pursuant to this Act.
                    ``(B) Non-fixed work sites.--With respect to the 
                employees of an employer who do not work at a fixed 
                site, the consultation services described in subsection 
                (a), and provided by an individual qualified under the 
                program, shall include an evaluation of the safety and 
                health program of the employer to determine if the 
                employer is in compliance with the requirements of this 
                Act, including any regulations promulgated under this 
                Act.
            ``(2) Consultation report.--Not later than 10 business days 
        after an individual qualified under the program provides the 
        consultation services described in subsection (a) to an 
        employer, the individual shall prepare and submit a written 
        report to the employer that includes an identification of any 
        violations of this Act and requirements with respect to 
        corrective measures the employer needs to carry out in order 
        for the workplace of the employer to be in compliance with the 
        requirements of this Act.
            ``(3) Reinspection.--Not later than 30 days after an 
        individual qualified under the program submits a report to an 
        employer under paragraph (2), or on a date agreed on by the 
        individual and the employer, the individual shall reinspect the 
        workplace of the employer to verify that any occupational 
        safety or health violations identified in the report have been 
        corrected and the workplace of the employer is in compliance 
        with this Act. If, after such reinspection, the individual 
        determines that the workplace is in compliance with the 
        requirements of this Act, the individual shall provide the 
employer a declaration of compliance.
            ``(4) Guidelines.--The Secretary, in consultation with an 
        advisory committee established in section 7(d), shall develop 
        model guidelines for use in evaluating a workplace under 
        paragraph (1).
    ``(e) Access to Records.--Any records relating to consultation 
services (as described in subsection (a)) provided by an individual 
qualified under the program, or records, reports, or other information 
prepared in connection with safety and health inspections, audits, or 
reviews conducted by or for an employer and not required under this 
Act, shall not be admissible in a court of law or administrative 
proceeding against the employer except that such records may be used as 
evidence for purposes of a disciplinary action under subsection (c).
    ``(f) Exemption.--
            ``(1) In general.--If an employer enters into a contract 
        with an individual qualified under the program, to provide 
        consultation services described in subsection (a), and receives 
        a declaration of compliance under subsection (d)(3), the 
        employer shall be exempt from the assessment of any civil 
        penalty under section 17 for a period of 2 years after the date 
        the employer receives the declaration.
            ``(2) Exceptions.--Paragraph (1) shall not apply--
                    ``(A) if the employer involved has not made a good 
                faith effort to remain in compliance as required under 
                the declaration of compliance; or
                    ``(B) to the extent that there has been a 
                fundamental change in the hazards of the workplace.
    ``(g) Definition.--In this section, the term `program' means the 
program established by the Secretary under subsection (a).''.

SEC. 6. INDEPENDENT SCIENTIFIC PEER REVIEW.

    Section 6(b) (29 U.S.C. 655(b)(1)) is amended--
            (1) by striking: ``(4) Within'' and inserting: ``(4)(A) 
        Within''; and
            (2) by adding at the end the following:
    ``(B)(i) Prior to issuing a final standard under this paragraph, 
the Secretary shall submit the draft final standard and a copy of the 
administrative record to the National Academy of Sciences for review in 
accordance with clause (ii).
    ``(ii)(I) The National Academy of Sciences shall appoint an 
independent Scientific Review Committee.
    ``(II) The Scientific Review Committee shall conduct an independent 
review of the draft final standard and the scientific literature and 
make written recommendations with respect to the draft final standard 
to the Secretary, including recommendations relating to the 
appropriateness and adequacy of the scientific data, scientific 
methodology, and scientific conclusions, adopted by the Secretary.
    ``(III) If the Secretary decides to modify the draft final standard 
in response to the recommendations provided by the Scientific Review 
Committee, the Scientific Review Committee shall be given an 
opportunity to review and comment on the modifications before the final 
standard is issued.
    ``(IV) The recommendations of the Scientific Review Committee shall 
be published with the final standard in the Federal Register.''.

SEC. 7. CONTINUING EDUCATION AND PROFESSIONAL CERTIFICATION FOR CERTAIN 
              OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION PERSONNEL.

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

SEC. 8. INSPECTION PROCEDURES AND QUOTAS.

    (a) In General.--Section 8(f) (29 U.S.C. 657(f)) is amended--
            (1) in paragraph (1)--
                    (A) in the second sentence, by inserting before 
                ``and a copy'' the following: ``and shall state whether 
                the alleged violation has been brought to the attention 
                of the employer and if so, whether the employer has 
                refused to take any action to correct the alleged 
                violation,'';
                    (B) by inserting after the third sentence the 
                following: ``The inspection shall be conducted for the 
                limited purpose of determining whether the violation 
                exists. During such an inspection, the Secretary may 
                take appropriate actions with respect to health and 
                safety violations that are not within the scope of the 
                inspection and that are observed by the Secretary or an 
                authorized representative of the Secretary during the 
                inspection.''; and
                    (C) by inserting before the last period the 
                following: ``, and, upon request by the employee or 
                employee representative, shall provide a written 
                statement of the reasons for the determination of the 
                Secretary''; and
            (2) by adding at the end thereof the following:
    ``(3) The Secretary or an authorized representative of the 
Secretary may, as a method of investigating an alleged violation or 
danger under this subsection, attempt, if feasible, to contact an 
employer by telephone, facsimile, or other appropriate methods to 
determine whether--
            ``(A) the employer has taken corrective actions with 
        respect to the alleged violation or danger; or
            ``(B) there are reasonable grounds to believe that a hazard 
        exists.
    ``(4) The Secretary is not required to conduct an inspection under 
this subsection if the Secretary determines that a request for an 
inspection was made for reasons other than the safety and health of the 
employees of an employer or that the employees of an employer are not 
at risk.''.
    (b) Quotas.--Section 9 (29 U.S.C. 658) is amended by adding at the 
end the following:
    ``(d) The Secretary shall not establish for any employee within the 
Occupational Safety and Health Administration (including any regional 
director, area director, supervisor, or inspector) a quota with respect 
to the number of inspections conducted, the number of citations issued, 
or the amount of penalties collected, in accordance with this Act.
    ``(e) Not later than 12 months after the date of enactment of this 
subsection and annually thereafter, the Secretary shall report on the 
number of employers that are inspected under this Act and determined to 
be in compliance with the requirements prescribed under this Act.''.

SEC. 9. PERSONAL RESPONSIBILITIES.

    (a) The Use of Alternative Methods as an Affirmative Defense.--
Section 9 (29 U.S.C. 658), as amended by section 8, is further amended 
by adding at the end the following:
    ``(f)(1) No citation may be issued under subsection (a) to an 
employer unless the employer knew, or with the exercise of reasonable 
diligence, would have known, of the presence of an alleged violation.
    ``(2) No citation shall be issued under subsection (a) to an 
employer for an alleged violation of section 5, any standard, rule, or 
order promulgated pursuant to section 6, any other regulation 
promulgated under this Act, or any other occupational safety and health 
standard, if the employer demonstrates that--
            ``(A) the employees of the employer have been provided with 
        the proper training and equipment to prevent such a violation;
            ``(B) work rules designed to prevent such a violation have 
        been established and adequately communicated to the employees 
        by the employer and the employer has taken reasonable measures 
        to discipline employees when violations of the work rules have 
        been discovered;
            ``(C) the failure of employees to observe work rules led to 
        the violation; and
            ``(D) reasonable measures have been taken by the employer 
        to discover any such violation.
    ``(g) A citation issued under subsection (a) to an employer who 
violates section 5, any standard, rule, or order promulgated pursuant 
to section 6, or any other regulation promulgated under this Act shall 
be vacated if such employer demonstrates that the employees of such 
employer were protected by alternative methods that are equally or more 
protective of the safety and health of the employees than the methods 
required by such standard, rule, order, or regulation in the factual 
circumstances underlying the citation.
    ``(h) Subsections (f) and (g) shall not be construed to eliminate 
or modify other defenses that may exist to any citation.''.
    (b) Employee Responsibility.--The Occupational Safety and Health 
Act of 1970 (29 U.S.C. 651 et seq.) is amended by inserting after 
section 10 the following:

``SEC. 10A. EMPLOYEE RESPONSIBILITY.

    ``(a) In General.--Notwithstanding any other provision of this Act, 
an employee who, with respect to personal protective equipment, 
willfully violates any requirement of section 5 or any standard, rule, 
or order promulgated pursuant to section 6, or any regulation 
prescribed pursuant to this Act, may be assessed a civil penalty, as 
determined by the Secretary, for each violation.
    ``(b) Citations.--If, upon inspection and investigation, the 
Secretary or the authorized representative of the Secretary believes 
that an employee of an employer has, with respect to personal 
protective equipment, violated any requirement of section 5 or any 
standard, rule, or order promulgated pursuant to section 6, or any 
regulation prescribed pursuant to this Act, the Secretary shall within 
60 days issue a citation to the employee. Each citation shall be in 
writing and shall describe with particularity the nature of the 
violation, including a reference to the provision of this Act, 
standard, rule, regulation, or order alleged to have been violated. No 
citation may be issued under this section after the expiration of 6 
months following the occurrence of any violation.
    ``(c) Notification.--The Secretary shall notify the employee by 
certified mail of the citation and proposed penalty and that the 
employee has 15 working days within which to notify the Secretary that 
the employee wishes to contest the citation or penalty. If no notice is 
filed by the employee within 15 working days, the citation and the 
penalty, as proposed, shall be deemed a final order of the Commission 
and not subject to review by any court or agency.
    ``(d) Contesting of Citation.--If the employee notifies the 
Secretary that the employee intends to contest the citation or proposed 
penalty, the Secretary shall immediately advise the Commission of such 
notification, and the Commission shall afford an opportunity for a 
hearing (in accordance section 554 of title 5, United States Code). The 
Commission shall after the hearing issue an order, based on findings of 
fact, affirming, modifying, or vacating the Secretary's citation or 
proposed penalty, or directing other appropriate relief. Such order 
shall become final 30 days after issuance of the order.''.

SEC. 10. REDUCED PENALTIES FOR PAPERWORK VIOLATIONS.

    Section 17 (29 U.S.C. 666) is amended by striking subsection (i) 
and inserting the following:
    ``(i) Any employer who violates any of the posting or paperwork 
requirements, other than fraudulent reporting requirement deficiencies, 
prescribed under this Act shall not be assessed a civil penalty for 
such a violation unless the Secretary determines that the employer has 
violated subsection (a) or (d) with respect to the posting or paperwork 
requirements.''.

SEC. 11. REVIEW BY THE COMMISSION.

    Section 17 (29 U.S.C. 666) is amended by striking subsection (j) 
and inserting the following:
    ``(j) The Commission shall have authority to assess all civil 
penalties under this section. In assessing a penalty under this section 
for a violation, the Commission shall give due consideration to the 
appropriateness of the penalty with respect to--
            ``(1) the size of an employer;
            ``(2) the number of employees exposed to the violation;
            ``(3) the likely severity of any injuries directly 
        resulting from the violation;
            ``(4) the probability that the violation could result in 
        injury or illness;
            ``(5) the good faith of an employer in correcting the 
        violation after the violation has been identified;
            ``(6) the history of previous violations by an employer; 
        and
            ``(7) whether the violation is the sole result of the 
        failure of an employer to meet a requirement under this Act, or 
        prescribed by regulation, with respect to the posting of 
        notices, the preparation or maintenance of occupational safety 
        and health records, or the preparation, maintenance, or 
        submission of any written information.''.

SEC. 12. TECHNICAL ASSISTANCE PROGRAM.

    (a) In General.--Section 21(c) (29 U.S.C. 670(c)) is amended--
            (1) by striking ``(c) The'' and inserting ``(c)(1) The'';
            (2) by striking ``(1) provide'' and inserting ``(A) 
        provide'';
            (3) by striking ``(2) consult'' and inserting ``(B) 
        consult''; and
            (4) by adding at the end the following:
    ``(2)(A) The Secretary shall, through the authority granted under 
section 7(c) and paragraph (1), enter into cooperative agreements with 
States for the provision of consultation services by such States to 
employers concerning the provision of safe and healthful working 
conditions.
    ``(B)(i) Except as provided in clause (ii), the Secretary shall 
reimburse a State that enters into a cooperative agreement under 
subparagraph (A) in an amount that equals 90 percent of the costs 
incurred by the State for the provision of consultation services under 
such agreement.
    ``(ii) A State shall be reimbursed by the Secretary for 90 percent 
of the costs incurred by the State for the provision of--
            ``(I) training approved by the Secretary for State 
        personnel operating under a cooperative agreement; and
            ``(II) specified out-of-State travel expenses incurred by 
        such personnel.
    ``(iii) A reimbursement paid to a State under this subparagraph 
shall be limited to costs incurred by such State for the provision of 
consultation services under this paragraph and the costs described in 
clause (ii).
    ``(C) Notwithstanding any other provisions of law, not less than 15 
percent of the total amount of funds appropriated for the Occupational 
Safety and Health Administration for a fiscal year shall be used for 
education, consultation, and outreach efforts.''.
    (b) Pilot Program.--Section 21 (29 U.S.C. 670) is amended by adding 
at the end the following:
    ``(d)(1) Not later than 90 days after the date of enactment of this 
subsection, the Secretary shall establish and carry out a pilot program 
in 3 States to provide expedited consultation services, with respect to 
the provision of safe and healthful working conditions, to employers 
that are small businesses (as the term is defined by the Administrator 
of the Small Business Administration). The Secretary shall carry out 
the program for a period not to exceed 2 years.
    ``(2) The Secretary shall provide consultation services under 
paragraph (1) not later than 4 weeks after the date on which the 
Secretary receives a request from an employer.
    ``(3) The Secretary may impose a nominal fee to an employer 
requesting consultation services under paragraph (1). The fee shall be 
in an amount determined by the Secretary. Employers paying a fee shall 
receive priority consultation services by the Secretary.
    ``(4) In lieu of issuing a citation under section 9 to an employer 
for a violation found by the Secretary during a consultation under 
paragraph (1), the Secretary shall permit the employer to carry out 
corrective measures to correct the conditions causing the violation. 
The Secretary shall conduct not more than 2 visits to the workplace of 
the employer to determine if the employer has carried out the 
corrective measures. The Secretary shall issue a citation as prescribed 
under section 5 if, after such visits, the employer has failed to carry 
out the corrective measures.
    ``(5) Not later than 90 days after the termination of the program 
under paragraph (1), the Secretary shall prepare and submit a report to 
the appropriate committees of Congress that contains an evaluation of 
the implementation of the pilot program.''.

SEC. 13. VOLUNTARY PROTECTION PROGRAMS.

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

SEC. 14. PREVENTION OF ALCOHOL AND SUBSTANCE ABUSE.

    The Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et 
seq.) is amended--
            (1) by striking sections 29, 30, and 31;
            (2) by redesignating sections 32, 33, and 34 as sections 
        30, 31, and 32, respectively; and
            (3) by inserting after section 28 (29 U.S.C. 676) the 
        following:

``SEC. 29. ALCOHOL AND SUBSTANCE ABUSE TESTING.

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

SEC. 15. CONSULTATION ALTERNATIVES.

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