DIVISION OF COMPLIANCE MANDATED ACTIVITIES UNDER THE OSH ACT
The Occupational Safety and Health Act and 29 CFR 1902 establish a number of mandated activities or core elements for any state plan program. The following outlines some of the key core elements, but does not address every mandated activity.
Unannounced Inspections, Including Prohibition Against Advance Notice Thereof
During federal fiscal year 2005, the Kentucky OSH Division of Compliance conducted a total of 1,677 unannounced inspections of work sites under the authority of Kentucky Revised Statute (KRS) Chapter 338.101. Advance notice of inspections is prohibited and punishable under KRS Chapter 338.991(9).
First Instance Sanctions Against Employers Who Violate the Act, Including Citations
KRS Chapter 338.141 mandates the issuance of citations for violations of any OSH requirement. The Kentucky Division of Compliance continued to improve Kentucky’s work environment through enforcement operations, which include first instance citations for violations of workplace safety and health standards and regulations. In federal fiscal year 2005, the Kentucky Division of Compliance identified and cited 2,616 safety and health violations, including 1,398 violations classified as “Serious,” six violations classified as “Willful,” and 48 violations classified as “Repeated.” In fiscal year 2005, citations for violations of safety and health provisions carried monetary penalties of $2,090,520.96 and an additional $49,000 in failure to abate penalties.
Ensuring Abatement of Potentially Harmful or Fatal Conditions
Hazardous conditions identified by Kentucky enforcement officers and consultants are required to be abated. In order to ensure the correction of hazards, KRS Chapter 338.991(4) provides specific penalties for any employer who fails to correct a cited violation. In addition, Kentucky Administrative Regulations (803 KAR 2:060) specify that employers must certify that each cited violation has been abated. Follow-up inspections are conducted to verify that potentially harmful conditions have been abated. During fiscal year 2005, the Division of Compliance significantly increased the number of follow-up inspections that were conducted for serious hazards. The Kentucky Division of Compliance conducted 109 follow-up inspections during fiscal year 2005.
Counteraction of Imminent Dangers
Kentucky Statute (KRS 338.131) provides enforcement personnel with the authority to order imminent danger conditions immediately abated. Such authority includes ordering necessary stops to avoid, correct or remove the imminent danger and prohibit the presence of individuals where the imminent danger exists. Reports of imminent danger are given the highest priority for inspection by the Division of Compliance.
In federal fiscal year 2005 compliance inspections resulting from reported imminent danger conditions significantly increased to 209 inspections.
Response to Complaints
Kentucky’s statutes ensure that employees and their representatives have a right to notify the OSH Program of perceived workplace violations. The same statute, KRS 338.121, requires that a special inspection be conducted upon receipt of such notifications, if reasonable grounds exist that there is a violation or danger. The Kentucky Division of Compliance prioritizes the employee complaints it receives. All formal complaints are scheduled for workplace inspections. Formal complaints are given priority based upon classification and gravity of the alleged hazard. Formal serious complaints, for example, are inspected within 30 days. During fiscal year 2005, the Kentucky OSH Program responded to 329 safety and health complaints, the majority of which alleged serious violations.
Fatality/Catastrophe Investigations
Only imminent danger investigations are given a higher priority in scheduling inspections by the Kentucky OSH Division of Compliance than fatality/catastrophe investigations. It is the policy of the Division of Compliance to investigate all job-related fatalities and catastrophes as thoroughly and expeditiously as possible.
Ensuring Employees Protection Against, and Investigation of, Discrimination
Kentucky law, KRS 338.121(3), offers protection to employees from reprisals, which might result from the exercise of rights afforded by the occupational safety and health statutes. A system of citations and penalties, appeals to the OSH Review Commission and reinstatement authority by the commissioner, while final determination are pending before the Review Commission, distinguish the Kentucky anti-discrimination effort. In addition, Kentucky Administrative Regulations, 803 KAR 2:240, allow any employee who believes he or she has been discriminated against, to file a complaint within 120 days of the alleged violation, as opposed to the 30 days allowed by federal law. The Kentucky Division of Compliance is responsible for the enforcement of the state’s anti-discrimination provisions. During federal fiscal year 2005, the Kentucky OSH Program opened 87 new cases of alleged discrimination. During federal fiscal year 2005, compliance received discrimination training provided by federal OSHA for all field and supervisory compliance personnel.
Ensuring Employees Access to Health and Safety Information
The Kentucky Revised Statutes, KRS Chapter 338.161(2) and Kentucky Administrative Regulations, 803 KAR 2:060, require employers to post notices informing employees of the protections and obligations provided for them in the law, including who to contact for assistance and information. Kentucky regulations also provide for the availability of copies of the law and all regulations through the Department of Labor. Employers who have obtained copies of these materials are required to make them available to employees or their authorized employee representatives. Failure to comply with posting requirements and information sharing provisions are citable offenses, which may carry penalties. In addition, Kentucky has adopted a Hazard Communication Standard that mirrors the federal standard. This regulation is intended to assure that employees will receive proper training in working with hazardous substances that the substances will be labeled, and that material safety data sheets will be available when needed.
Ensuring Employee Access to Information on their Exposure to Toxic or Harmful Agents
Kentucky has adopted 29 CFR 1910.1020, which assures employee access to information on exposure to toxic materials. Employers who fail to comply with these requirements are subject to citations and monetary penalties. In addition, Kentucky has an additional regulation, 803 KAR 2:062, entitled, “Employers’ Responsibility Where Employees are Exposed to Toxic Substances.” This regulation requires employers to monitor areas of exposure to potentially toxic substances and to notify employees who have been or are being exposed to toxic materials. Monitoring records are to be maintained and made available to employees, former employees or employee representatives.
KYOSH Program Coverage of Public Employees
Kentucky’s Occupational Safety and Health statute, KRS 338, includes definitions of employer and employee, which do not exclude public employers and public employees. The exclusions to KRS Chapter 338 cover only employees of the U.S. government and places of employment over which federal agencies other than OSHA have exercised statutory authority. In addition, written opinions of the Kentucky Attorney General’s Office have supported the Department of Labor’s position that public employees are included in the Kentucky OSH Program’s jurisdiction. Kentucky public employers and employees, thus, are subject to the same requirements, sanctions and benefits of Kentucky’s efforts as private sector employers and employees. Kentucky statutes, regulations and policies make no distinction between the public and private sectors. Voluntary compliance services are likewise available to state and local public agencies in the same manner and to the same degree as to private employers. During federal fiscal year 2005, the Kentucky Division of Compliance conducted 70 inspections of public sector work sites, including programmed inspections and responses to public employee complaints.
Recordkeeping and Reporting
Kentucky Revised Statutes, KRS Chapter 338.161, require employers to keep, preserve and make available to the executive director of the Office of Occupational Safety and Health and the secretary of the U.S. Department of Labor or the secretary of the U.S. Department of Health, Education and Welfare (sic), records relating to occupational safety and health as may be prescribed by regulation. The Kentucky program has promulgated regulations, 803 KAR 2:180, which specifically address occupational injury and illness recordkeeping, as well as reporting of fatalities or multiple hospitalization accidents. These regulations are identical to those of federal OSHA. Kentucky plans however to make changes to the accident reporting requirements in 2006.
