S. 4413 — Protecting America’s Workers Act

This section expands the general duty clause of the Occupational Safety and Health Act of 1970 to require employers to furnish employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm and that the employer creates or controls or to which the employer exposes any employee or any other person performing work at the place of employment. It further provides that each employee or other person exposed to such a hazard may constitute a separate violation.

This section revises procedures for adopting and updating national consensus standards under section 6(a) of the Occupational Safety and Health Act of 1970. It requires the Secretary of Labor to update by rule any such standard promulgated or incorporated by reference not later than 2 years after the effective date in section 601(a) of the Protecting America’s Workers Act, unless the standard has been superseded by a subsection (b) rule or the Secretary determines the update would not improve health or safety for designated employees. The section also adds subsection (h) to prohibit any standard, rule, or regulation under the Act from reducing protections afforded by an existing health or safety standard, rule, regulation, or national consensus standard.

This section requires employers to post information for employees on the protections against retaliation afforded under section 11(c) of the Occupational Safety and Health Act of 1970.

This section revises employer reporting requirements under the Occupational Safety and Health Act by directing the Secretary of Labor to issue regulations that (A) require prompt notification of any work-related death or injury or illness resulting in in-patient hospitalization, amputation, or loss of an eye; (B) prohibit employer policies or practices that discourage accurate recordkeeping or reporting of injuries and illnesses or that result in adverse action against reporting employees; (C) require employers subject to 29 C.F.R. §§ 1904.41 and 1902.7(d) (as amended by the May 12, 2016 final rule at 81 Fed. Reg. 29624) to electronically submit annual injury and illness data, which the Secretary must make publicly available in a searchable format; and (D) require site-controlling employers to maintain and make available a site log of all recordable injuries and illnesses for every employee (including contractors) at multi-employer work sites.

This section modifies Section 8(e) of the Occupational Safety and Health Act of 1970 to provide that time spent by an employee participating in or aiding any workplace inspection shall be deemed hours worked and that no employee shall suffer any loss of wages, benefits, or other terms and conditions of employment for such participation.

This section requires the Secretary of Labor to investigate any incident resulting in the death of an employee or any significant incident at a place of employment. Employers must promptly notify the Secretary of such incidents and take measures to preserve evidence, except when acting to prevent employee injury, substantial property damage, or disruption of essential public safety services. The provision defines an incident resulting in death as one causing an employee fatality and a significant incident as one causing in-patient hospitalization of two or more employees for medical treatment.

This section directs the Occupational Safety and Health Administration to issue a final rule within 180 days of enactment amending its recordkeeping regulations under section 8(c) of the Occupational Safety and Health Act of 1970 to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation that continues for as long as the employer is required to keep such records and does not expire solely because the employer fails to create the records when first required. The section also provides a specific congressional authorization for issuance of the rule under 5 U.S.C. 801(b)(2).

This section modifies the period for issuance of citations under the Occupational Safety and Health Act of 1970 by providing that a violation continues to occur for as long as an employer has not satisfied the requirements, rules, standards, orders, and regulations referenced in section 9(a). (Thus, the six-month limitation period for the Secretary to issue a citation does not begin to run until abatement.)

This section prohibits the issuance, modification, or settlement of any citation under section 9 of the Occupational Safety and Health Act of 1970 without including a violation designation enumerated in section 17 of the Act (i.e., serious, willful, repeated, or failure to correct).

This section establishes victims’ rights under the Occupational Safety and Health Act of 1970 with respect to inspections and investigations of work-related injuries, illnesses, or deaths. A victim (defined as an affected employee or, in cases of death or incapacity, a qualifying family member) or the victim’s representative is afforded the right to meet with the Secretary before a citation decision, receive citations and reports at the same time as the employer, receive notice of contests and proceedings, and participate in settlement negotiations. The section also grants victims the right to appear and make statements before the Occupational Safety and Health Review Commission, requires the Secretary and Commission to establish implementing procedures, and directs the Secretary to designate a family liaison at each OSHA area office to keep victims informed and assist in asserting these rights.

This section expands employers’ rights to contest citations and proposed penalties under section 10(c) of the Occupational Safety and Health Act of 1970. It expressly permits contests of modifications to citations, adds grounds for contest (including that a citation fails to designate a violation as serious, willful, or repeated, or that the proposed penalty is inadequate), clarifies that a pending contest does not bar the Secretary from inspecting workplaces or issuing new citations, and requires the Occupational Safety and Health Review Commission to notify employers of any citation modifications.

This section modifies procedures under the Occupational Safety and Health Act for correcting serious, willful, or repeated violations. It requires that the abatement period for such violations begin upon an employer's receipt of a citation and provides that filing a notice of contest does not stay the abatement period. Employers may seek a stay from the Occupational Safety and Health Review Commission by demonstrating a substantial likelihood of success on the merits and that the stay will not adversely affect worker health and safety. The section establishes expedited timelines for hearings and decisions on stay motions, including a hearing within 15 days and a decision within 15 days thereafter, with opportunities for employee participation.

This section deems a decision or order issued by an administrative law judge of the Occupational Safety and Health Review Commission to be a final decision or order of the Commission—and appealable under section 11(a) of the Occupational Safety and Health Act—if the Commission fails to issue a final decision or order within 1 year after accepting a timely petition for review because it lacks a quorum. The new 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. (1) It excepts violations designated as serious, willful, or repeated from the timing rules that delay the start of the abatement period under section 10(b) until after final Commission order. (2) It expands judicial review under section 11(a) to cover Commission or administrative law judge failures to decide petitions for stays or other review in a timely manner, adds references to subsections (d) and (e), and sets a 15-day filing deadline for petitions from final Commission orders on stays under section 10(d) (instead of the general 60-day deadline). (3) It rewrites section 17(d) to authorize a civil penalty of not more than $7,000 per day for failure to correct a serious, willful, or repeated violation (where a stay has not been issued), while retaining the same $7,000-per-day cap for other violations and specifying that the correction period begins after final Commission order in good-faith review proceedings.

This section increases civil penalties under section 17 of the Occupational Safety and Health Act of 1970 for workplace safety violations and establishes annual inflation adjustments. (1) For willful or repeated violations, it raises the maximum penalty to $700,000 (from $70,000) and the minimum penalty for serious violations to $50,000 (from $5,000), and directs the Secretary or Commission to consider an employer’s full history of violations under both federal law and state occupational safety and health plans when determining whether a violation is repeated. (2) For serious violations, it sets the penalty at $70,000 for each violation but not less than $20,000 (from $7,000). (3) For other-than-serious violations, it sets the penalty at $30,000 for each violation but not less than $10,000 (from $7,000). (4) For failure to correct violations, it sets the daily penalty at not more than $70,000 but not less than $10,000 (from not more than $7,000). (5) For posting violations, it sets the penalty at $25,000 for each violation but not less than $5,000 (from $7,000). (6) It requires the Secretary to adjust all civil penalty amounts annually, no later than January 15, to reflect changes in the Consumer Price Index for all urban consumers.

This section increases criminal penalties under the Occupational Safety and Health Act of 1970 for certain knowing violations. It establishes that an employer (including any officer or director) whose violation causes or significantly contributes to an employee’s death is subject to a fine under title 18, United States Code, imprisonment for up to 10 years (20 years for a repeat offense), or both. It raises the maximum penalty for knowingly providing advance notice of an inspection with intent to impede it to a fine under title 18 or imprisonment for up to 5 years. It increases the maximum penalty for false statements or representations from a fine of $10,000 and imprisonment for 6 months to a fine under title 18 or imprisonment for up to 5 years. It creates a new criminal offense for violations that cause or significantly contribute to serious bodily harm (defined as bodily injury or illness involving substantial risk of death, protracted unconsciousness, protracted and obvious physical disfigurement, or protracted loss or impairment of a bodily member, organ, or mental faculty), punishable by a fine under title 18 or imprisonment for up to 5 years (10 years for a repeat offense), with liability extended to officers and directors. It clarifies that nothing in the Act precludes state or local criminal prosecutions under applicable state or local law.

This section establishes rules for the accrual and calculation of interest on penalties under the Occupational Safety and Health Act of 1970. Pre-final order interest begins to accrue on the date a party contests a citation and ends upon issuance of the final order, calculated at the underpayment rate determined by the Secretary of the Treasury under section 6621 of the Internal Revenue Code of 1986 and compounded daily. Post-final order interest begins to accrue 30 days after issuance of a final order of the Occupational Safety and Health Review Commission or a court and is charged at a rate of 8 percent per year.