[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2371 Introduced in Senate (IS)]







108th CONGRESS
  2d Session
                                S. 2371

   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 certain violators, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 29, 2004

  Mr. Kennedy (for himself, Mr. Corzine, Mr. Dodd, Mr. Bingaman, Mr. 
   Harkin, Ms. Mikulski, Mrs. Murray, Mr. Edwards, Mrs. Clinton, Mr. 
 Akaka, Mr. Lautenberg, Mr. Rockefeller, Mr. Feingold, and Mr. Durbin) 
introduced the following bill; which was read twice and referred to the 
          Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 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 certain violators, 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.

    This Act may be cited as the ``Protecting America's Workers Act''.

SEC. 2. REFERENCES.

    Except as otherwise expressly provided, wherever 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.).

                TITLE I--COVERAGE AND APPLICATION OF ACT

SEC. 101. COVERAGE OF PUBLIC EMPLOYEES.

    (a) In General.--Section 3(5) (29 U.S.C. 652(5)) is amended by 
striking ``but does not include'' and all that follows and inserting 
``including the United States, a State, or a political subdivision of a 
State.''.
    (b) Construction.--Nothing in this Act shall be construed to affect 
the application of section 18 of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 667).

SEC. 102. APPLICATION OF ACT.

    Section 4(b) (29 U.S.C. 653(b)(1)) is amended--
            (1) by redesignating paragraphs (2), (3), and (4) as 
        paragraphs (5), (6), and (7), respectively; and
            (2) by striking paragraph (1) and inserting the following:
    ``(1) 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 jurisdiction, 
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 Act, the Secretary may publish a 
certification notice in the Federal Register. 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 health. In determining whether to cede 
jurisdiction to a Federal agency, the Secretary shall seek to avoid 
duplication of, and conflicts between, health and safety requirements. 
Such certification shall remain in effect unless and until rescinded by 
the Secretary.
    ``(2) The Secretary shall, by regulation, 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 (1) may petition the 
Secretary to rescind a certification notice under paragraph (1). Upon 
receipt of such a petition, the Secretary shall investigate the matter 
involved and shall, within 90 days after receipt of the petition, 
publish a decision with respect to the petition in the Federal 
Register.
    ``(3) Any person who may be adversely affected by--
            ``(A) a decision of the Secretary certifying that the 
        Secretary has ceded jurisdiction to another Federal agency 
        pursuant to paragraph (1); or
            ``(B) a decision of the Secretary denying a petition to 
        rescind such a certification notice under paragraph (1),
may, not later than 60 days after such decision is published in the 
Federal Register, 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 business, for judicial 
review of such decision. A copy of the petition shall be forthwith 
transmitted by the clerk of the court to the Secretary. The Secretary's 
decision shall be set aside if found to be arbitrary, capricious, an 
abuse of discretion, or otherwise not in accordance with law.
    ``(4) Nothing in this Act shall apply to working conditions covered 
by the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et 
seq.).''.

          TITLE II--INCREASING PROTECTIONS FOR WHISTLEBLOWERS

SEC. 201. EMPLOYEE ACTIONS.

    Section 11(c)(1) (29 U.S.C. 660(c)(1)) is amended by inserting 
before the period at the end the following: ``, including reporting any 
injury, illness, or unsafe condition to the employer, agent of the 
employer, safety and health committee involved, or employee safety and 
health representative involved''.

SEC. 202. PROHIBITION OF DISCRIMINATION.

    Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph 
(2) and inserting the following:
    ``(2) No person shall discharge or in any manner discriminate 
against 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 to, or serious impairment of the health 
of, the employee or other employees. The circumstances causing the 
employee's apprehension of serious injury or serious impairment of 
health shall be of such a nature that a reasonable person, under the 
circumstances confronting the employee, would conclude that there is a 
bona fide danger of a serious injury, or serious impairment of health, 
resulting from the circumstances. In order to qualify for protection 
under this paragraph, the employee, when practicable, shall have sought 
from the employee's employer, and have been unable to obtain, a 
correction of the circumstances causing the refusal to perform the 
employee's duties.''.

SEC. 203. PROCEDURE.

    Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph 
(3) and inserting the following:
    ``(3) Any employee who believes that the employee has been 
discharged, disciplined, or otherwise discriminated against by any 
person in violation of paragraph (1) or (2) may, within 180 days after 
such alleged violation occurs, file (or have filed by any person on the 
employee's behalf) a complaint with the Secretary alleging that such 
discharge or discrimination violates paragraph (1) or (2). Upon receipt 
of such a complaint, the Secretary shall notify the person named in the 
complaint (referred to in this subsection as the `respondent') of the 
filing of the complaint.
    ``(4)(A)(i) Not later than 60 days after the receipt of a complaint 
filed under paragraph (3), the Secretary shall conduct an investigation 
and determine whether there is reasonable cause to believe that the 
complaint has merit. During the investigation, the Secretary shall 
notify the respondent of the charges made in the complaint, and shall 
provide such person with an opportunity to meet with the inspector 
conducting the investigation, to submit a response to such charges, and 
to present witnesses to rebut such charges. The Secretary shall also 
consider the result of any grievance proceeding provided for in a 
collective bargaining agreement, that may have been held with respect 
to such charges. Upon completion of the investigation, the Secretary 
shall issue findings and notify the complainant and the respondent of 
the Secretary's findings. If the Secretary has concluded that there is 
reasonable cause to believe that a violation has occurred, the 
Secretary's findings shall be accompanied by a preliminary order 
providing the relief prescribed by subparagraph (B).
    ``(ii)(I) Not later than 30 days after the Secretary has issued 
findings under clause (i), either the respondent or the complainant may 
file objections to the findings or preliminary order, and request a 
hearing on the record, except that the filing of such objections shall 
not operate to stay any reinstatement remedy contained in the 
preliminary order.
    ``(II) If a hearing described in subclause (I) is not requested in 
the 30-day period described in such subclause with respect to a 
preliminary order, the order shall be deemed to be a final order and 
not subject to judicial review.
    ``(iii) If the Secretary does not issue findings under clause (i) 
with respect to a complaint within 90 days after the receipt of the 
complaint, the complainant may request a hearing on the record on the 
complaint.
    ``(iv) The Secretary shall expeditiously conduct a hearing 
requested under clause (ii) or (iii). Upon the conclusion of such 
hearing, the Secretary shall issue a final order within 120 days. Until 
the issuance of a final order, such hearing may be terminated at any 
time on the basis of a settlement agreement entered into by the 
Secretary, the complainant, and the respondent.
    ``(B)(i) If, in response to a complaint filed under paragraph (3), 
the Secretary determines that a violation of paragraph (1) or (2) has 
occurred, in issuing an order under subparagraph (A)(iv), the Secretary 
shall require--
            ``(I) the person who committed such violation to correct 
        the violation;
            ``(II) such person to reinstate the complainant to the 
        complainant's former position together with the compensation 
        (including backpay), terms, conditions, and privileges of the 
        complainant's employment; and
            ``(III) such person to pay compensatory damages.
    ``(ii) On issuing an order requiring a remedy described in clause 
(i), the Secretary, at the request of the complainant, may assess 
against the person against whom the order is issued a sum equal to the 
aggregate amount of all costs and expenses (including attorney's fees) 
reasonably incurred, as determined by the Secretary, by the complainant 
for, or in connection with a complaint upon which the order was issued.
    ``(5)(A) Any person adversely affected or aggrieved by an order 
issued after a hearing conducted under paragraph (4)(A) may obtain 
review of the order in the United States Court of Appeals for the 
circuit in which the violation, with respect to which the order was 
issued, allegedly occurred, or the circuit in which such person resided 
on the date of such violation. The petition for review shall be filed 
within 60 days after the issuance of the Secretary's order. Such review 
shall be conducted in accordance with the provisions of chapter 7 of 
title 5, United States Code. The court shall conduct the review and 
issue a decision expeditiously.
    ``(B) If a person fails to comply with an order issued under 
paragraph (4)(A), the Secretary shall file a civil action in the United 
States district court for the district in which the violation was found 
to occur in order to enforce such order. In actions brought under this 
subparagraph, the district court shall have jurisdiction to grant all 
appropriate relief, including injunctive relief, reinstatement, and 
compensatory damages.
    ``(6) The legal burdens of proof set forth in section 1221(e) of 
title 5, United States Code, shall govern adjudication of violations 
under this subsection.''.

SEC. 204. RELATION TO ENFORCEMENT.

    Section 17(j) (29 U.S.C. 666(j)) is amended by inserting before the 
period the following: ``, including the history of violations, under 
section 11(c)''.

             TITLE III--INCREASING PENALTIES FOR VIOLATORS

SEC. 301. POSTING OF EMPLOYEE RIGHTS.

    Section 8(c)(1) (29 U.S.C. 657(c)(1)) is amended by adding at the 
end the following new sentence: ``Such regulations shall include 
provisions requiring employers to post for employees information on the 
protections afforded under section 11(c).''.

SEC. 302. INVESTIGATIONS OF FATALITIES AND SERIOUS INCIDENTS.

    Section 8 (29 U.S.C. 657) is amended by adding at the end the 
following new subsection:
    ``(i)(1) The Secretary shall investigate any incident resulting in 
death or serious incident, that occurs in a place of employment covered 
by this Act.
    ``(2) If an incident resulting in death or serious incident occurs 
in a place of employment covered by this Act, the employer shall 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 incident. 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. If an employer takes such action, the employer 
shall notify the Secretary of the action in a timely fashion.
    ``(3) In this subsection:
            ``(A) Incident resulting in death.--The term `incident 
        resulting in death' means an incident that results in the death 
        of an employee.
            ``(B) Serious incident.--The term `serious incident' means 
        an incident that results in the hospitalization of 2 or more 
        employees.''.

SEC. 303. PROHIBITION ON UNCLASSIFIED CITATIONS.

    Section 9 (29 U.S.C. 658) is amended by adding at the end the 
following:
    ``(d) The Secretary may not designate a citation issued under this 
section as an unclassified citation.''.

SEC. 304. VICTIMS' RIGHTS.

    The Act is amended by inserting after section 9 (29 U.S.C. 658) the 
following:

``SEC. 9A. VICTIM'S RIGHTS.

    ``(a) Definition.--In this section, the term `victim' means--
            ``(1) an employee who has sustained a work-related injury 
        or illness that is the subject of an inspection or 
        investigation conducted under section 8, or
            ``(2) a family member of an employee, if--
                    ``(A) the employee is killed as a result of a work-
                related injury or illness that is the subject of an 
                inspection or investigation conducted under section 8; 
                or
                    ``(B) the employee sustains a work-related injury 
                or illness that is the subject of an inspection or 
                investigation conducted under section 8, and the 
                employee cannot reasonably exercise the employee's 
                rights under this section.
    ``(b) Rights.--On request, a victim shall be afforded the right, 
with respect to a work-related injury or illness (including a death 
resulting from a work-related injury or illness) involving an employee, 
to--
            ``(1) meet with the Secretary, or an authorized 
        representative of the Secretary, regarding the inspection or 
        investigation conducted under section 8 concerning the 
        employee's injury or illness before the Secretary's decision to 
        issue a citation or take no action; and
            ``(2)(A) receive, at no cost, a copy of any citation or 
        report, issued as a result of such inspection or investigation, 
        on the later of the date the citation or report is issued and 
        the date of the request;
            ``(B) be informed of any notice of contest filed under 
        section 10; and
            ``(C) be provided an explanation of the rights of employee 
        and employee representatives to participate in proceedings 
        conducted under section 10.
    ``(c) 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 resulting in death or serious incident 
under section 8, the Secretary, on request, shall provide an 
opportunity to the victim to appear and make a statement before the 
parties conducting settlement negotiations.
    ``(d) Notification and Review.--The Secretary shall establish 
procedures--
            ``(1) to inform victims of their rights under this section; 
        and
            ``(2) for the informal review of any claim of a denial of 
        such a right.''.

SEC. 305. RIGHT TO CONTEST CITATIONS AND PENALTIES.

    The first sentence of section 10(c) (29 U.S.C. 659(c)) is amended--
            (1) by inserting after ``the issuance of a citation'' the 
        following: ``(including a modification of a citation issued)''; 
        and
            (2) by inserting after ``files a notice with the Secretary 
        alleging'' the following: ``that the citation fails properly to 
        designate the violation as serious, willful, or repeated, that 
        the proposed penalty is not adequate, or''.

SEC. 306. OBJECTIONS TO MODIFICATION OF CITATIONS.

    Section 10 (29 U.S.C. 659) is amended by adding at the end the 
following new subsection:
    ``(d)(1) If the Secretary intends to withdraw or to modify a 
citation issued under section 9(a) as a result of any agreement with 
the cited employer, the Secretary shall provide (in accordance with 
rules of procedure prescribed by the Commission) prompt notice to 
affected employees or representatives of affected employees, and that 
notice shall include the terms of the proposed agreement.
    ``(2) Not later than 15 working days after the receipt of a notice 
provided in accordance with paragraph (1), any employee or 
representative of employees, regardless of whether such employee or 
representative has previously elected to participate in the proceedings 
involved, shall have the right to file a notice with the Secretary 
alleging that the proposed agreement fails to effectuate the purposes 
of this Act and stating the respects in which the agreement fails to 
effectuate the purposes.
    ``(3) Upon receipt of a notice filed under paragraph (2), the 
Secretary shall consider the statements presented in the notice, and if 
the Secretary determines to proceed with the proposed agreement, the 
Secretary shall respond with particularity to the statements presented 
in the notice.
    ``(4) Not later than 15 working days following the Secretary's 
response provided pursuant to paragraph (3), the employee or 
representative of employees shall, on making a request to the 
Commission, be entitled to a hearing before the Commission as to 
whether adoption of the proposed agreement would effectuate the 
purposes of this Act, including a determination as to whether the 
proposed agreement would adequately abate the alleged violations 
alleged in the citation.
    ``(5) If the Commission determines that the proposed agreement 
fails to effectuate the purposes of this Act, the proposed agreement 
shall not be entered as an order of the Commission and the citation 
shall not be withdrawn or modified in accordance with the proposed 
agreement.''.

SEC. 307. CIVIL PENALTIES.

    Section 17 (29 U.S.C. 666) is amended--
            (1) in subsection (a)--
                    (A) by striking ``$70,000'' and inserting 
                ``$100,000'';
                    (B) by striking ``$5,000'' and inserting 
                ``$7,000''; and
                    (C) by adding at the end the following: ``If such a 
                violation causes the death of an employee, such civil 
                penalty amounts shall be increased to not more than 
                $250,000 for such violation, but not less than $50,000 
                for such violation.'';
            (2) in subsection (b)--
                    (A) by striking ``$7,000'' and inserting 
                ``$10,000''; and
                    (B) by adding at the end the following: ``If such a 
                violation causes the death of an employee, such civil 
                penalty amounts shall be increased to not more than 
                $50,000 for such violation, but not less than $20,000 
                for such violation.'';
            (3) in subsection (c)--
                    (A) by striking ``$7,000'' and inserting 
                ``$10,000''; and
                    (B) by adding at the end the following: ``If such a 
                violation causes the death of an employee, such civil 
                penalty amounts shall be increased to not more than 
                $50,000 for such violation, but not less than $20,000 
                for such violation.'';
            (4) in subsection (d)--
                    (A) by striking ``$7,000'' and inserting 
                ``$10,000''; and
                    (B) by adding at the end the following: ``If such a 
                violation causes the death of an employee, such civil 
                penalty amounts shall be increased to not more than 
                $50,000 for such violation, but not less than $20,000 
                for such violation.''; and
            (5) in subsection (i), by striking ``$7,000'' and inserting 
        ``$10,000''.

SEC. 308. OSHA CRIMINAL PENALTIES.

    (a) In General.--Section 17 (29 U.S.C. 666) (as amended by section 
307) is further amended--
            (1) in subsection (e)--
                    (A) by striking ``fine of not more than $10,000'' 
                and inserting ``fine in accordance with section 3571 of 
                title 18, United States Code,'';
                    (B) by striking ``six months'' and inserting ``10 
                years'';
                    (C) by inserting ``under this subsection or 
                subsection (i)'' after ``first conviction of such 
                person'';
                    (D) by striking ``fine of not more than $20,000'' 
                and inserting ``fine in accordance with section 3571 of 
                title 18, United States Code,''; and
                    (E) by striking ``one year'' and inserting ``20 
                years'';
            (2) in subsection (f), by striking ``fine of not more than 
        $1,000 or by imprisonment for not more than six months,'' and 
        inserting ``fine in accordance with section 3571 of title 18, 
        United States Code, or by imprisonment for not more than 2 
        years,'';
            (3) in subsection (g), by striking ``fine of not more than 
        $10,000, or by imprisonment for not more than six months,'' and 
        inserting ``fine in accordance with section 3571 of title 18, 
        United States Code, or by imprisonment for not more than 1 
        year,'';
            (4) by redesignating subsections (i) through (l) as 
        subsections (j) through (m), respectively; and
            (5) by inserting after subsection (h) the following:
    ``(i) Any employer who willfully violates any standard, rule, or 
order promulgated pursuant to section 6, or any regulation prescribed 
pursuant to this Act, and that violation causes serious bodily injury 
to any employee but does not cause death to any employee, shall, upon 
conviction, be punished by a fine in accordance with section 3571 of 
title 18, United States Code, or by imprisonment for not more than 5 
years, or by both, except that if the conviction is for a violation 
committed after a first conviction of such person under this subsection 
or subsection (e), punishment shall be by a fine in accordance with 
section 3571 of title 18, United States Code, or by imprisonment for 
not more than 10 years, or by both.''.
    (b) Definition.--Section 3 (29 U.S.C. 652) is amended by adding at 
the end the following:
            ``(15) The term `serious bodily injury' means bodily injury 
        that involves--
                    ``(A) a substantial risk of death;
                    ``(B) protracted unconsciousness;
                    ``(C) protracted and obvious physical 
                disfigurement; or
                    ``(D) protracted loss or impairment, of the 
                function of a bodily member, organ, or mental 
                faculty.''.
    (c) Jurisdiction for Prosecution Under State and Local Criminal 
Laws.--Section 17 (29 U.S.C. 666) (as amended by subsection (a)) is 
further amended by adding at the end the following:
    ``(o) 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 locality.''.
    (d) Inflation Adjustment.--Section 17 (29 U.S.C. 666) (as amended 
by subsection (c)) is further amended by adding at the end the 
following:
    ``(p) Amounts provided under this section for civil penalties shall 
be adjusted by the Secretary at least once during each 4-year period to 
account for the percentage increase or decrease in the Consumer Price 
Index for all urban consumers during such period.''.

    TITLE IV--REQUIRING EMPLOYERS TO PROVIDE AND PAY FOR [PERSONAL] 
                          PROTECTIVE EQUIPMENT

SEC. 401. REQUIREMENT.

    Section 6(b) (29 U.S.C. 655(b)), as amended by section 102(b), is 
further amended by adding at the end the following:
    ``(10)(A) In this paragraph, the term `personal protective 
equipment' means personal protective equipment as such term is defined 
for purposes of section 1910.132(a) of title 29, Code of Federal 
Regulations (or any corresponding similar regulation or ruling).
    ``(B)(i) Not later than 30 days after the date of enactment of the 
Protecting America's Workers Act, the Secretary shall amend section 
1910.132(a) of title 29, Code of Federal Regulations, to provide that 
protective equipment shall be provided at no cost to the employee.
    ``(ii) In promulgating any standard under this section that 
requires protective equipment, the Secretary shall specify that the 
protective equipment shall be provided at no cost to the employee.''.
                                 <all>