H.R. 3036 — Protecting America’s Workers Act

This section revises the general duty clause of the Occupational Safety and Health Act of 1970 (i.e., employers' duty to furnish workplaces free from recognized hazards likely to cause death or serious physical harm) to apply only to hazards that the employer creates or controls or to which the employer exposes any employee or other person performing work at the place of employment (previously, to each employee generally). It also adds a new subsection (c) providing that each employee or other person exposed to such a hazard may constitute a separate violation. (Thus, OSHA may issue multiple citations—and potentially higher penalties—per incident based on the number of exposed individuals.)

This section revises procedures for promulgating occupational safety and health standards under the Occupational Safety and Health Act of 1970 by (1) exempting the Secretary of Labor's initial promulgation of national consensus standards and established federal standards from chapters 5 and 6 of title 5 (from chapter 5 only), (2) requiring the Secretary to update, by rule and not later than two years after the effective date of section 601(a) of the Protecting America’s Workers Act, any such standards previously promulgated or incorporated by reference unless superseded under subsection (b) or determined not to improve health or safety, (3) expanding conflict resolution among standards to expressly include national consensus standards or their consolidation, and (4) prohibiting any new standard, rule, or regulation under the Act from reducing protections provided by existing standards, rules, regulations, or national consensus standards.

This section requires regulations under section 8(c)(1) of the Occupational Safety and Health Act of 1970 (OSH Act)—which govern employer recordkeeping for OSH Act enforcement and occupational injury prevention—to include provisions requiring employers to post information on employee protections under section 11(c) (i.e., protections against retaliation for filing complaints, participating in proceedings, or exercising other rights under the OSH Act).

This section requires Occupational Safety and Health Act (OSHA) recordkeeping regulations to include (1) prompt employer notification to OSHA of work-related deaths or injuries/illnesses resulting in inpatient hospitalization, amputation, or loss of an eye; (2) a prohibition on employer policies discouraging accurate reporting of work-related injuries/illnesses or discriminating against reporting employees; (3) annual electronic reporting of work-related deaths, injuries, and illnesses by employers subject to 29 CFR 1904.41 and 1902.7(d), with OSHA making such data publicly available in searchable format; and (4) maintenance of a site log by each site-controlling employer (i.e., the employer with primary control over a multi-employer worksite) for all recordable injuries/illnesses at the site, including those of contractors.

This section requires that time spent by employees participating in or aiding Occupational Safety and Health Act (OSHA) inspections be deemed compensable hours worked and prohibits loss of wages, benefits, or other terms and conditions of employment for such participation. (OSHA inspections, conducted by the Secretary of Labor, enforce federal workplace safety and health standards.)

This section establishes a new subsection (i) to Section 8 of the Occupational Safety and Health Act (29 U.S.C. 657) requiring the Secretary of Labor to investigate any workplace incident resulting in an employee's death or a significant incident (i.e., inpatient hospitalization of two or more employees for medical treatment). It further requires employers to promptly notify the Secretary of such incidents, preserve evidence to assist investigations (without preventing actions to avoid employee injury, property damage, or public safety disruptions, provided the Secretary is timely notified of those actions).

This section requires the Occupational Safety and Health Administration (OSHA) to issue, not later than 180 days after the date of enactment, a final rule amending its recordkeeping regulations under section 8(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 657(c)) to clarify that (1) the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation; (2) such duty continues for as long as the employer is required to keep records of the recordable injury or illness; and (3) such duty does not expire solely because the employer fails to create the necessary records when first required to do so. (Thus, OSHA may enforce recordkeeping requirements against employers even if initial records were not created on time.) This section designates the required rule as a specific congressional authorization under the Congressional Review Act (5 U.S.C. 801(b)(2)).

This section modifies the time limit for issuing citations under the Occupational Safety and Health Act of 1970 (OSHA) by providing that a violation continues to occur—and thus is subject to citation—for as long as an employer has not abated it (previously, no citation after six months following the violation's occurrence). (Thus, OSHA may issue citations for ongoing, unabated violations beyond the prior six-month limit.)

This section prohibits the issuance, modification, or settlement of a citation under the Occupational Safety and Health Act (OSH Act) unless the violation is designated as one of the types enumerated in OSH Act section 17 (i.e., serious, other-than-serious, repeat, willful, or failure to abate). (Thus, OSHA may no longer issue unclassified citations.)

This section establishes new section 9A of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), providing rights to victims of work-related injuries or illnesses—or their representatives and specified family members—during Occupational Safety and Health Administration (OSHA) inspections and investigations (under section 8), citation issuance (under section 9), and proceedings before the Occupational Safety and Health Review Commission (under section 10). (A victim is an employee, including a former employee, who sustains such an injury or illness that is the subject of an inspection or investigation; family members qualify if the victim dies or is incapacitated from exercising rights.) Victims’ rights before the Secretary include (1) meeting regarding the inspection before a citation decision or no-action determination; (2) receiving copies of citations or reports at no cost and at the same time as the employer; (3) being informed of any notice of contest or addition of parties; and (4) receiving notification of proceedings, service of pleadings, relevant documents, and an explanation of participation rights for employers, employees, representatives, and victims. Victims’ rights before the Commission include, upon request, (1) notification of proceeding times and dates; (2) receipt of pleadings and decisions; and (3) an opportunity to appear and make a statement per Commission rules. The section further requires the Secretary to notify victims before agreeing to withdraw or modify a citation and to allow them to appear or submit a letter; directs the Secretary to establish procedures for informing victims of their rights and for informal review of denials; requires the Commission to establish victim hearing procedures and to give due consideration to victim statements in decisions; and mandates OSHA to designate at least one family liaison per area office to inform victims of investigation, enforcement, and settlement statuses and to assist in asserting rights.

This section revises employer and employee contest rights for Occupational Safety and Health Administration (OSHA) citations under the Occupational Safety and Health Act of 1970 (29 U.S.C. 659(c)) by (1) authorizing employer contests of citation modifications issued under section 9 (i.e., 29 U.S.C. 658) and employee notices alleging improper designation of violations as serious, willful, or repeated or inadequate proposed penalties; (2) clarifying that a pending contest before the Occupational Safety and Health Review Commission does not bar the Secretary of Labor from conducting inspections or issuing new citations under section 9; and (3) requiring the Commission to notify both employers and employees of any citation modification.

This section establishes procedures under a new subsection (d) of Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659) for abatement of serious, willful, or repeated violations pending an employer's contest of an Occupational Safety and Health Administration (OSHA) citation. (As background, OSHA issues citations for workplace safety and health violations, with serious, willful, or repeated designations indicating higher severity and potential for worker harm; under prior law, the abatement period for cited violations did not begin until entry of a final order by the Occupational Safety and Health Review Commission (OSHRC) if contested in good faith.) Specifically, the section provides that (1) for serious, willful, or repeated violations, the abatement period begins upon the employer's receipt of the citation; (2) an employer's notice of contest does not stay the abatement period for such violations (though it may for other violations); and (3) an employer contesting the existence of such a violation or the reasonableness of the abatement period may file a motion for stay with OSHRC, which may grant it only upon a demonstration of substantial likelihood of success on the contested issues and no adverse effect on worker health and safety. The section further directs OSHRC to issue expedited procedural rules for stay motions, including (i) an administrative law judge hearing within 15 days of filing (extendable at employer request) and decision within 15 days after the hearing; (ii) timely judge decisions; (iii) objections to a judge's decision filed within 5 days, with a Commissioner deciding on review within 10 days (and, if reviewed, a Commission decision within 30 days after objection receipt, or else the judge's decision becomes final); and (iv) notice to and participation rights for affected employees or representatives. (Thus, employers must abate severe violations immediately upon citation—regardless of contest—unless they secure a discretionary stay under a stringent standard and tight deadlines.)

This section establishes a process under the Occupational Safety and Health Act of 1970 for deeming an administrative law judge's decision or order of the Occupational Safety and Health Review Commission (OSHRC)—which adjudicates contests to OSHA citations and penalties—a final order of the Commission if a timely petition for review is filed and the Commission fails to issue a final decision or order within one year due to lack of quorum. (Thus, such decisions may be appealed to federal court under section 11(a).) The provision does not apply to motions to stay filed under subsection (d)(3).

This section makes conforming amendments to the Occupational Safety and Health Act of 1970 (OSHA). Specifically: (1) In section 10(b) (29 U.S.C. 659(b)), revises the period for correcting cited violations to begin immediately—with exceptions only for non-serious, non-willful, and non-repeated violations—upon issuance of a citation (previously, the period did not begin for any violation until entry of a final order by the Occupational Safety and Health Review Commission (OSHRC) if the employer timely contests). (Thus, for serious, willful, or repeated violations, failure-to-abate penalties may accrue during contest proceedings unless a stay is granted.) (2) In section 11(a) (29 U.S.C. 660(a)), expands the scope for direct judicial review in U.S. courts of appeals to include any OSHRC order (or the failure of the OSHRC, including an administrative law judge, to make a timely decision on a petition for a stay or other review); updates cross-references from subsection (c) to subsections (c), (d), or (e); and shortens the petition filing period to 15 days for final OSHRC orders on stays under section 10(d) (from 60 days). (3) In section 17(d) (29 U.S.C. 666(d)), establishes civil penalties of up to $7,000 per day for failure to correct a cited violation, distinguishing between (A) serious, willful, or repeated violations (where the correction period begins upon citation unless a stay is issued under section 10(d)) and (B) all other violations (where the period begins upon a final OSHRC order if the employer timely contests in good faith).

This section increases maximum civil penalties under section 17 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666) as follows: (1) in subsection (a), to $700,000 (from $70,000) and $50,000 (from $5,000), and by requiring the Secretary of Labor or Occupational Safety and Health Review Commission to consider employer violation history under federal and state occupational safety and health plans when determining repeat violations; (2) in subsection (b), to $70,000 (from $7,000); (3) in subsection (c), to $15,625 (from $7,000); (4) in subsection (d), to $70,000 (from $7,000); and (5) in subsection (j) (as redesignated), to $15,625 (from $7,000). The section also requires the Secretary to adjust such penalty amounts annually no later than January 15 for changes in the Consumer Price Index for all urban consumers, consistent with the Federal Civil Penalties Inflation Adjustment Act of 1990.

This section revises criminal penalties under section 17 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666) (OSHA) as follows: (1) replaces the penalty in subsection (f) for an employer knowingly violating an OSHA standard, rule, order, or regulation where the violation caused or significantly contributed to an employee's death (previously in subsection (e) for willful violations causing death) with a fine under 18 U.S.C., imprisonment for up to 10 years (from up to $10,000 or 6 months), or both for a first offense and up to 20 years (from up to $20,000 or 1 year) for repeat offenses, and expands "employer" to include any officer or director; (2) replaces the penalty in subsection (g) for knowingly giving advance notice of an OSHA inspection to impede or interfere with it with a fine under 18 U.S.C., imprisonment for up to 5 years, or both; (3) in subsection (h), replaces the penalty with a fine under 18 U.S.C., imprisonment for up to 5 years (from up to $10,000 or 6 months), or both; (4) adds subsection (k) establishing a new criminal penalty for an employer knowingly violating an OSHA standard, rule, order, or regulation where the violation caused or significantly contributed to serious bodily harm (but not death) to an employee—defined as involving substantial risk of death, protracted unconsciousness, protracted physical disfigurement, or protracted loss/impairment of bodily function—of a fine under 18 U.S.C., imprisonment for up to 5 years, or both for a first offense and up to 10 years for repeat offenses, with "employer" expanded to include officers and directors; and (5) adds subsection (o) clarifying that nothing in OSHA precludes state or local criminal prosecutions. (Thus, these changes replace fixed-dollar fines with potentially higher penalties under 18 U.S.C. §3571—up to $250,000 for individuals or $500,000 for organizations—and substantially increase maximum prison terms for knowing violations causing death or serious harm, expanding personal criminal liability to corporate officers and directors.)

This section establishes prejudgment interest requirements on civil penalties assessed under the Occupational Safety and Health Act of 1970 (OSHA). Pre-final order interest accrues from the date a party contests a citation until issuance of the final order, calculated at the underpayment rate set by the Secretary of the Treasury under IRC §6621 and compounded daily; post-final order interest accrues at 8% per year beginning 30 days after issuance of a final order by the Occupational Safety and Health Review Commission or a court.