16VAC25-60 Administrative Regulation for the Virginia Occupational Safety and Health Program

REGULATIONS

Vol. 33 Iss. 7 - November 28, 2016

TITLE 16. LABOR AND EMPLOYMENT

SAFETY AND HEALTH CODES BOARD

Chapter 60

Proposed Regulation

Title of Regulation: 16VAC25-60. Administrative Regulation for the Virginia Occupational Safety and Health Program (amending 16VAC25-60-30, 16VAC25-60-90, 16VAC25-60-110 through 16VAC25-60-150, 16VAC25-60-245, 16VAC25-60-260).

Statutory Authority: §§ 40.1-6 and 40.1-22 of the Code of Virginia.

Public Hearing Information:

February 16, 2017 - 10 a.m. - Main Street Centre, 600 East Main Street, 12th Floor Conference Room South, Richmond, VA 23219.

Public Comment Deadline: January 27, 2017.

Agency Contact: Jay Withrow, Director of Legal Support, Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone [phone], or email [e-mail].

Basis: The Safety and Health Codes Board is authorized by subdivision 5 of § 40.1-22 of the Code of Virginia to "adopt, alter, amend, or repeal rules and regulations to further, protect and promote the safety and health of employees in places of employment over which it has jurisdiction and to effect compliance with the federal OSH Act of 1970...as may be necessary to carry out its functions established under this title." The board is required to adopt the standard that most adequately assures, to the extent feasible, on the basis of the best available evidence that no employee will suffer material impairment of health or functional capacity. The standards must be at least as stringent as the standards promulgated by the federal Occupational Safety and Health (OSH) Act of 1970 (P.L. 91-596). In addition to the attainment of the highest degree of health and safety protection for the employee, the board must consider the latest available scientific data in the field, the feasibility of the standards, and experiences gained under this and other health and safety laws.

Purpose: The purpose of amending the regulation is to make certain substantive, procedural, and clarifying changes that reflect current Virginia Occupational Safety and Health (VOSH) policy and protect and promote the safety and health of employees in the workplace. Proposed changes include:

1. The amendment to 16VAC25-60-130 allows VOSH to enforce the Virginia Department of Transportation (VDOT) Work Area Protection Manual in lieu of the federal Manual on Uniform Traffic Control Devices (Part VI of the MUTCD, 1988 Edition, Revision 3, or Part VI of the MUTCD, Millennium Edition) in any contract for construction, repair, or maintenance between either the Commonwealth or one of its local governments and an employer, when such contract provides that the parties assure compliance with the VDOT Work Area Protection Manual. A housekeeping change to renumber all paragraphs in 16VAC25-60-120 through 16VAC25-60-150 correctly is also proposed here.

Although the federal MUTCD has been adopted by OSHA and VOSH in 29 CFR 1926.200 through 29 CFR 1926).202 (16VAC25-175-1926), a significant amount of the language provisions are merely recommended and noncompulsory (i.e., the terms "should" or "may" are used rather than the mandatory "must" or "shall" for desired activities and procedures) and are therefore not enforceable in a compliance setting. To mitigate this problem, VDOT has adopted its own Work Area Protection Manual that contains fewer "shoulds" and "mays." VDOT routinely specifies language in its contracts with employers that requires employer compliance with the VDOT Work Area Protection Manual.

2. The amendment to 16VAC25-60-30 D clarifies whistleblower anti-retaliation safeguards for public sector employees other than those employees of the Commonwealth and its agencies, for example political subdivisions such as city and county governments.

Section 40.1-2.1 of the Code of Virginia provides that: "The provisions of this title and any rules and regulations promulgated pursuant thereto shall not apply to the Commonwealth or any of its agencies, institutions, or political subdivisions, or any public body, unless, and to the extent that, coverage is extended by specific regulation of the Commissioner or the Safety and Health Codes Board. The Commissioner is authorized to establish and maintain an effective and comprehensive occupational safety and health program applicable to employees of the Commonwealth, its agencies, institutions, political subdivisions, or any public body. Such program shall be subject to any State plan submitted to the federal government for State enforcement of the Federal Occupational Safety and Health Act of 1970 (P.L. 91-596), or any other regulation promulgated under Title 40.1. The commissioner shall establish procedures for enforcing the program which shall include provisions for fair hearings including judicial review and sanctions to be applied for violations."

The VOSH Administrative Regulations Manual (ARM) defines the term "public employer" in 16VAC25-60-10 as the Commonwealth of Virginia, including its agencies, authorities, or instrumentalities or any political subdivision or public body.

The current wording of 16VAC25-60-30 D applies § 40.1-51.2:2 A of the Code of Virginia to all public employers (i.e., both state and local government) but states that the Commissioner of Labor and Industry shall not bring an action in circuit court for a violation involving a public employer. This language appears to conflict with 16VAC25-60-30 E, which contains a comprehensive application of § 40.1-51.2:2 to political subdivisions or public bodies and allows the commissioner to litigate such a violation in circuit court.

Prior to proposing this amendment, it has been the Department of Labor and Industry's position that the right of the commissioner to litigate a violation against a political subdivision or public body in 16VAC25-60-30 E, takes precedence over 16VAC25-60-30 D, because subsection E is the more specific provision in that it specifically applies § 40.1-51.2:2 to a subset of the broader category of the term "public employer." The proposed amendment will eliminate this conflict.

3. The amendment to 16VAC25-60-30 E applies § 40.1-7 of the Code of Virginia to public employers other than the Commonwealth and its agencies, which will allow Commonwealth's attorneys to act on behalf of the commissioner in certain situations involving those public sector employers.

16VAC25-60-30 E provides that the following apply to public employers other than the Commonwealth and its agencies, and are actions that would need the assistance of local Commonwealth's attorneys: (i) commissioner's authority to seek injunctive relief in certain situations, § 40.1-49.4 F of the Code of Virginia and (ii) commissioner's authority to obtain administrative search warrants under §§ 40.1-49.9 through 40.1-49.12 of the Code of Virginia.

4. The amendment to 16VAC25-60-30 G clarifies that when seeking to resolve whistleblower anti-retaliation cases involving the Commonwealth and its agencies, the commissioner will petition the appropriate state official in a manner similar to that specified in 16VAC25-60-300 B, which outlines the process for resolving failure to abate issues involving the Commonwealth and its agencies.

Section 16VAC25-60-300 B provides: "Whenever the Commonwealth or any of its agencies fails to abate a violation within the time provided in an appropriate final order, the Commissioner of Labor and Industry shall normally petition for redress as follows: For violations in the Department of Law, to the Attorney General; for violations in the Office of the Lieutenant Governor, to the Lieutenant Governor; for violations otherwise in the executive branch, to the appropriate cabinet secretary; for violations in the State Corporation Commission, to a judge of the commission; for violations in the Department of Workers' Compensation, to the Chairman of the Workers' Compensation Commission; for violations in the legislative branch of government, to the Chairman of the Senate Committee on Commerce and Labor; for violations in the judicial branch, to the chief judge of the circuit court or to the Chief Justice of the Supreme Court. Where the violation cannot be timely resolved by this petition, the commissioner shall bring the matter to the Governor for resolution."

5. The amendment to 16VAC25-60-90 clarifies Virginia Freedom of Information Act (FOIA) requirements in regard to the Voluntary Protection Program, § 40.1-49.13 of the Code of Virginia. The proposed amendment tracks federal OSHA's Freedom of Information Act provisions for the federal Voluntary Protection Program and provides that the following documents are releasable pursuant to request (i) participant applications and amendments; (ii) onsite evaluation reports; (iii) annual self-evaluations; (iv) agency staff correspondence containing recommendations to the commissioner; (v) approval letters; and (vi) notifications to compliance staff removing the participants from the general inspection list and related formal correspondence.

6. The amendment to 16VAC25-60-110 specifies that occupational safety and health anti-discrimination cases will also be referred to as "whistleblower" cases. This terminology change reflects changes implemented by federal OSHA to refer to employees who allege discriminatory practices by an employer when the employees have engaged in activities protected by § 11(c) of the OSH Act of 1970, as "whistleblowers."

7. The amendment to 16VAC25-60-110 clarifies that the commissioner may request penalties that would be paid to the employee for occupational whistleblower discrimination or anti-retaliation cases at the litigation stage pursuant to § 40.1-51.2:2 of the Code of Virginia.

Section 40.1-51.2:1 of the Code of Virginia prohibits employers from discriminating against employees who have exercised their safety and health rights under Title 40.1 of the Code of Virginia. Subsection A of § 40.1-51.2:2 provides that the commissioner shall bring an action in circuit court when it is determined that a violation of § 40.1-51.2:1 has occurred and attempts at conciliation have failed. Subsection A of § 40.1-51.2:2 further provides that the court "…shall have jurisdiction, for cause shown, to restrain violations and order appropriate relief…."

The amendment clarifies that the court's authority to "restrain violations and order appropriate relief" includes the ability to issue penalties or fines to the employer that would be payable to the employee.

8. The amendment to 16VAC25-60-245 clarifies that the commissioner's authority in subdivision 4 of § 40.1-6 of the Code of Virginia to take and preserve testimony, examine witnesses and administer oaths constitutes an administrative subpoena power.

9. The amendment to 16VAC25-60-260 clarifies that the commissioner's burden of proving the basis for a VOSH citation, penalty, and order of abatement is by a "preponderance of the evidence." While the Court of Appeals of Virginia has ruled that the burden of proof for the commissioner in a VOSH case is by a preponderance of the evidence (National College of Business and Technology Inc. v. Davenport, 57 Va. App. 677, 685, 705 S.E. 2d 519, 523 (2011)), the issue has not been definitively ruled on by the Supreme Court of Virginia.

10. The amendment to 16VAC25-60-260 clarifies that the burden for proving an affirmative defense to a citation lies with the defendant. While it is generally accepted in case law that the burden for proving an affirmative defense to an OSHA/VOSH citation lies with the employer, it is not conclusively so. For instance, the U.S. Court of Appeals for the Fourth Circuit has ruled that the burden of proving unforeseeable and unpreventable employee misconduct lies with the government (Ocean Electric Corporation v. Secretary of Labor, 594 F. 2d 396 (4th Cir. 1979) and L.R. Willson & Sons, Inc. v. Occupational Safety and Health Review Commission, 134 F. 3d 1235 (4th Cir.), cert denied, 525 U.S. 962 (1998)). While the Court of Appeals of Virginia has ruled that the burden of proof on the issue of employee misconduct lies with the employer in Virginia (Magco of Maryland, Inc. v. Barr, 33 Va. App. 78, 531 S. E. 2d 614 (2000)), the issue has not been definitively ruled on by the Supreme Court of Virginia.

Substance: The proposed amendments address certain issues in regard to 16VAC25-60. Substantive changes proposed include:

1. Allowing VOSH to enforce the requirements of the Virginia Department of Transportation (VDOT) Work Area Protection Manual in lieu of the federal Manual on Uniform Traffic Control Devices (Part VI of the MUTCD, 1988 Edition, Revision 3, or Part VI of the MUTCD, Millennium Edition) in any contract for construction, repair, or maintenance between either the Commonwealth or one of its local governments and an employer, when such contract stipulates employer compliance with the VDOT Work Area Protection Manual.

2. Clarification of anti-retaliation safeguards for public sector employees, including allowing a Commonwealth's attorney to act on behalf of the commissioner for public sector employers (16VAC25-60-30 F) and allowing the commissioner to petition the cabinet secretary and then the executive branch regarding resolution of anti-retaliation violations with a state agency (16VAC25-60-30 G).

3. Adding Virginia Freedom of Information Act requirements in regard to the Voluntary Protection Program (16VAC25-60-90).

4. Changing terminology from occupational discrimination or anti-retaliation to "whistleblower" to clarify that the commissioner can request penalties or fines for occupational discrimination or anti-retaliation cases at the litigation stage (16VAC25-60-110).

5. Changing terminology to reflect that the commissioner's authority to take and preserve testimony and administer oaths is an administrative subpoena (16VAC25-60-245).

6. Clarifying that the burden of proof in VOSH court cases is by a preponderance of the evidence (16VAC25-60-260) and that the burden for proving an affirmative defense to a citation lies with the employer (16VAC25-60-260).

Issues: The amendment to 16VAC25-60-130, which allows VOSH to enforce the Virginia Department of Transportation (VDOT) Work Area Protection Manual, will subject employers to the potential for VOSH citations and penalties should they violate requirements in the VDOT Manual. However, by the terms of the regulation, such violations and penalties will only be issued in situations where the employer violates a contract freely and voluntarily entered into with a public sector body. Since such an employer is bound contractually to comply with the VDOT Work Area Protection Manual and incur the costs associated with compliance, the proposed regulation will place no additional financial burden on the employer for compliance with the VDOT requirements.

Employers could accrue increased costs in cases where the commissioner files a complaint in circuit court alleging that an employer discriminated against a whistleblower employee should the commissioner request and the court grant additional penalties or fines under its authority to restrain violations and order appropriate relief. The fiscal impact is very limited as VOSH whistleblower court cases average less than one per year.

Employees should be provided with additional safety and health protections in construction work zones as the amendment to 16VAC25-60-130 will permit VOSH to enforce the VDOT Work Area Protection manual in certain situations in lieu of enforcing §§ 1926.200 through 1926.202, which incorporate by reference Part VI of the Manual of Uniform Traffic Control Devices (MUTCD), 1988 Edition, Revision 3, or Part VI of the MUTCD, Millennium Edition.

Employees should benefit from the amendment to 16VAC25-60-110 that clarifies that the commissioner may request penalties or fines that would be paid to the employee for occupational whistleblower discrimination or anti-retaliation cases at the litigation stage, pursuant to § 40.1-51.2:2 of the Code of Virginia. Although litigated cases are infrequent, the possibility that a court could restrain violations by adding additional fines or penalties should serve to deter discriminatory conduct by employers.

No adverse impacts to employees are anticipated from the adoption of the proposed amendments.

Other than training Department of Labor and Industry employees on the changes to the regulation, no additional fiscal or other programmatic impacts are anticipated for the department from the adoption of the proposed amendments.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Safety and Health Codes Board proposes to allow the Department of Labor and Industry (DOLI) to enforce the requirements of the Virginia Department of Transportation (VDOT) Work Area Protection Manual in lieu of the federal Manual on Uniform Traffic Control Devices and make several clarifying changes.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The employers in highway, street, and bridge construction are primarily engaged in construction, reconstruction, rehabilitation, and repairs of highways, streets, roads, airport runways, public sidewalks, or bridges. Employers in this industry are currently required to comply with the federal Manual on Uniform Traffic Control Devices which is adopted by reference to 29 CFR Part 1926. However, DOLI contends that the federal manual is permissive in general and consequently difficult to enforce. The proposed regulation will require employers to comply with the VDOT Work Area Protection Manual in any contract for construction, repair, or maintenance between either the Commonwealth or one of its local governments and an employer, where such contract stipulates employer compliance with the VDOT manual. Since the VDOT manual will apply where an employer already agreed to comply with it through a contract, no additional compliance costs on employers is expected. However, the proposed change will allow DOLI to issue citations for violations of the VDOT manual and strengthen compliance. DOLI estimates an additional $6,440 in penalties based on seven violations with an average penalty of $920 as a result of this particular change.

In general, improved safety and health enforcement can create significant savings and cost avoidances associated with workplace injuries and illnesses for employers, while having no discernible damage to employers' ability to stay in business and to their sales or credit ratings.¹ In addition, the injury and illness rates for the construction industry as a whole are higher than those for the private sector for all industries both nationally and in Virginia; the incident rates for highway, street, and bridge construction are higher than the incident rates for general construction both nationally and in Virginia; and the incident rates for road construction in Virginia are lower than those nationally with the notable exception that the Virginia's Days Away, Restrictions and Transfers rate for highway, street and bridge construction, which is an indicator of more serious injuries, was significantly higher than the national average for two of the last three years.² Given the fact that road construction in Virginia is more prone to incidents relative to some other benchmarks, stronger enforcement in road construction industry appears to have potential to create net benefits.

The proposed changes will also clarify: 1) whistleblower anti-retaliation safeguards for public sector employees and the procedures to enforce such safeguards, 2) that the Commissioner can request penalties or fines for occupational discrimination or anti-retaliation cases at the litigation stage, 3) requirements of Virginia Freedom of Information Act in regard to the Voluntary Protection Program, 4) the Commissioner's authority to take and preserve testimony and administer oaths is an administrative subpoena, 5) that the burden of proof in court cases is by a preponderance of the evidence,  and 6) that the burden for proving an affirmative defense to a citation lies with the employer. These proposed changes are not anticipated to create any significant economic impact other than improving the clarity of the regulation.

Businesses and Entities Affected. The proposed regulation applies to all public and private sector places of employment in the state, with the exception of federal workers, the United States Postal Service, private sector maritime, federal military facilities, and other federal enclaves where the state has ceded jurisdiction to the federal government. Based on data from 2014, approximately 234,644 establishments employing 3.6 million employees are subject to this regulation. There are 505 establishments and 20,849 employees in Virginia's highway, street, and bridge construction industry.³

Localities Particularly Affected. The proposed changes apply statewide.

Projected Impact on Employment. No significant impact on employment is expected.

Effects on the Use and Value of Private Property. No significant impact on the use and value of private property is expected.

Real Estate Development Costs. No significant impact on real estate development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. Most of the affected employers are considered small businesses. The costs and other effects on them are the same as those discussed above.

Alternative Method that Minimizes Adverse Impact. As discussed above, compliance with the VDOT manual may increase citations issued to employers, some of which may be small businesses. There is no known alternative to minimize adverse impact of penalties associated with enforcement while accomplishing the intended policy goal.

Adverse Impacts:

Businesses. Non-small businesses may be issued penalties if they contract to perform work according to the VDOT manual and do not comply with it.

Localities. The proposed amendments will not adversely affect localities.

Other Entities. The proposed amendments will not adversely affect other entities.

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¹ "Randomized Government Safety Inspections Reduce Worker Injuries with No Detectable Job Loss," David I. Levine, Haas School of Business, University of California, Berkeley, Prepared for the House of Representatives Subcommittee on Workforce Protections, Hearing on "Promoting Safe Workplaces through Voluntary Protection Programs" June 28, 2012.

² Source: Bureau of Labor Statistics

³ Source: Virginia Employment Commission

Agency's Response to Economic Impact Analysis: The Department of Labor and Industry has no additional comment in response to the economic impact analysis.

Summary:

The proposed amendments include (i) requiring an employer to comply with the Virginia Department of Transportation (VDOT) Work Area Protection Manual in lieu of the federal Manual on Uniform Traffic Control Devices when working under a contract for construction, repair, or maintenance between the employer and either the Commonwealth or any political subdivision or public body when the contract requires employer compliance with the VDOT manual; (ii) clarifying the anti-retaliation safeguards for public sector employees and the procedures to enforce those safeguards; (iii) clarifying what documents may be disclosed in regards to the Voluntary Protection Program (§ 40.1-49.13 of the Code of Virginia); (iv) clarifying that the Commissioner of Labor and Industry can request penalties or fines for occupational discrimination or anti-retaliation cases at the litigation stage; (v) establishing that the commissioner's burden of proof is a preponderance of the evidence and that burden for proving an affirmative defense lies with the employer; and (vi) making certain changes in terminology.

16VAC25-60-30. Applicability to public employers.

A. All occupational safety and health standards adopted by the board shall apply to public employers and their employees in the same manner as to private employers.

B. All sections of this chapter shall apply to public employers and their employees. Where specific procedures are set out for the public sector, such procedures shall take precedence.

C. The following portions of Title 40.1 of the Code of Virginia shall apply to public employers: §§ 40.1-10, subdivision A 1 of § 40.1-49.4 A(1), 40.1-49.8, 40.1-51, 40.1-51.1, 40.1-51.2, 40.1-51.2:1, 40.1-51.3, 40.1-51.3:2, and 40.1-51.4:2.

D. Section 40.1-51.2:2 A of the Code of Virginia shall apply to public employers the Commonwealth and its agencies except that the commissioner shall not bring action in circuit court in the event that a voluntary agreement cannot be obtained.

E. Sections 40.1-7, 40.1-49.4 F, 40.1-49.9, 40.1-49.10, 40.1-49.11, 40.1-49.12, and 40.1-51.2:2 of the Code of Virginia shall apply to public employers other than the Commonwealth and its agencies.

F. If the commissioner determines that an imminent danger situation, as defined in § 40.1-49.4 F of the Code of Virginia, exists for an employee of the Commonwealth or one of its agencies, and if the employer does not abate that imminent danger immediately upon request, the Commissioner of Labor and Industry shall forthwith petition the governor to direct that the imminent danger be abated.

G. If the commissioner is unable to obtain a voluntary agreement to resolve a violation of § 40.1-51.2:1 of the Code of Virginia by the Commonwealth or one of its agencies, the Commissioner of Labor and Industry shall petition for redress in the manner provided in this chapter 16VAC25-60-300 B.

16VAC25-60-90. Release of information and disclosure pursuant to requests under the Virginia Freedom of Information Act and subpoenas.

A. Pursuant to the Virginia Freedom of Information Act (FOIA) (§ 2.2-3700 et seq. of the Code of Virginia) and with the exceptions stated in subsections B through H of this section, employers, employees and their representatives shall have access to information gathered in the course of an inspection.

B. Interview statements of employers, owners, operators, agents, or employees given to the commissioner pursuant to § 40.1-49.8 of the Code of Virginia are confidential. Pursuant to the requirements set forth in § 40.1-11 of the Code of Virginia, individuals shall have the right to request a copy of their own interview statements.

C. All file documents contained in case files which that are under investigation, and where a citation has not been issued, are not disclosable until:

1. The decision has been made not to issue citations; or

2. Six months has lapsed following the occurrence of an alleged violation.

D. Issued citations, orders of abatement, and proposed penalties are public documents and are releasable upon a written request. All other file documents in cases where a citation has been issued are not disclosable until the case is a final order of the commissioner or the court, except that once a copy of file documents in a contested case has been provided to legal counsel for the employer in response to a request for discovery, or to a third party in response to a subpoena duces tecum, such documents shall be releasable upon a written request, subject to the exclusions in this regulation section and the Virginia Freedom of Information Act.

E. Information required to be kept confidential by law shall not be disclosed by the commissioner or by any employee of the department. In particular, the following specific information is deemed to be nondisclosable:

1. The identity of and statements of an employee or employee representative who has complained of hazardous conditions to the commissioner;

2. The identities of employers, owners, operators, agents, or employees interviewed during inspections and their interview statements;

3. Employee medical and personnel records obtained during VOSH inspections. Such records may be released to the employee or his duly authorized representative upon a written, and endorsed request; and

4. Employer trade secrets, commercial, and financial data.

F. The commissioner may decline to disclose a document that is excluded from the disclosure requirements of the Virginia FOIA, particularly documents and evidence related to criminal investigations, writings protected by the attorney-client privilege, documents compiled for use in litigation, and personnel records.

G. An effective program of investigation and conciliation of complaints of discrimination requires confidentiality. Accordingly, disclosure of records of such complaints, investigations, and conciliations will be presumed to not serve the purposes of Title 40.1 of the Code of Virginia, except for statistical and other general information that does not reveal the identities of particular employers or employees.

H. All information gathered through participation in consultation services or training programs of the department shall be withheld from disclosure except for statistical data which that does not identify individual employers.

I. All information gathered through participation in voluntary protection programs of the department pursuant to § 40.1-49.13 of the Code of Virginia shall be withheld from disclosure except for statistical data that does not identify individual employers and for the following:

1. Participant applications and amendments, onsite evaluation reports, and annual self-evaluations;

2. Agency staff correspondence containing recommendations to the commissioner, approval letters, notifications to compliance staff removing the participants from the general inspection list, and related formal correspondence.

I. J. The commissioner, in response to a subpoena, order, or other demand of a court or other authority in connection with a proceeding to which the department is not a party, shall not disclose any information or produce any material acquired as part of the performance of his official duties or because of his official status without the approval of the Commissioner of Labor and Industry.

J. K. The commissioner shall disclose information and statistics gathered pursuant to the enforcement of Virginia's occupational safety and health laws, standards, and regulations where it has been determined that such a disclosure will serve to promote the safety, health, and welfare of employees. Any person requesting disclosure of such information and statistics should include in his written request any information that will aid the commissioner in this determination.

16VAC25-60-110. Discrimination Whistleblower discrimination; discharge or retaliation; remedy for retaliation.

A. In carrying out his duties under § 40.1-51.2:2 of the Code of Virginia, the commissioner shall consider case law, regulations, and formal policies of federal OSHA. An employee's engagement in activities protected by Title 40.1 does not automatically render him immune from discharge or discipline for legitimate reasons. Termination or other disciplinary action may be taken for a combination of reasons, involving both discriminatory and nondiscriminatory motivations. In such a case, a violation of § 40.1-51.2:1 of the Code of Virginia has occurred if the protected activity was a substantial reason for the action, or if the discharge or other adverse action would not have taken place "but for" engagement in protected activity.

Employee whistleblower activities, protected by § 40.1-51.2:1 of the Code of Virginia, include, but are not limited to:

1. Making any complaint to his employer or any other person under or related to the safety and health provisions of Title 40.1 of the Code of Virginia;

2. Instituting or causing to be instituted any proceeding under or related to the safety and health provisions of Title 40.1 of the Code of Virginia;

3. Testifying or intending to testify in any proceeding under or related to the safety and health provisions of Title 40.1 of the Code of Virginia;

4. Cooperating with or providing information to the commissioner during a worksite inspection; or

5. Exercising on his own behalf or on behalf of any other employee any right afforded by the safety and health provisions of Title 40.1 of the Code of Virginia.

Discharge or discipline of an employee who has refused to complete an assigned task because of a reasonable fear of injury or death will be considered retaliatory only if the employee has sought abatement of the hazard from the employer and the statutory procedures for securing abatement would not have provided timely protection. The condition causing the employee's apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, an abatement of the dangerous condition.

Disciplinary measures taken by employers solely in response to employee refusal to comply with appropriate safety rules and regulations shall not be regarded as retaliatory action prohibited by § 40.1-51.2:1 of the Code of Virginia.

B. A complaint pursuant to § 40.1-51.2:2 of the Code of Virginia may be filed by the employee himself or anyone authorized to act in his behalf.

The investigation of the commissioner shall include an opportunity for the employer to furnish the commissioner with any information relevant to the complaint.

An attempt by an employee to withdraw a previously filed complaint shall not automatically terminate the investigation of the commissioner. Although a voluntary and uncoerced request from the employee that his complaint be withdrawn shall receive due consideration, it shall be the decision of the commissioner whether further action is necessary to enforce the statute.

The filing of a retaliation complaint with the commissioner shall not preclude the pursuit of a remedy through other channels. Where appropriate, the commissioner may postpone his investigation or defer to the outcome of other proceedings.

C. Subsection A of § 40.1-51.2:2 of the Code of Virginia provides that the commissioner shall bring an action in circuit court when it is determined that a violation of § 40.1-51.2:1 of the Code of Virginia has occurred and a voluntary agreement could not be obtained. Subsection A of § 40.1-51.2:2 further provides that the court "shall have jurisdiction, for cause shown, to restrain violations and order appropriate relief." The court's authority to restrain violations and order appropriate relief includes the ability to issue penalties or fines to the employer that would be payable to the employee. In determining the appropriate level of penalties or fines, the court may look to subsections G, H, I, and J of § 40.1-49.4 of the Code of Virginia.

Part III
Occupational Safety and Health Standards

16VAC25-60-120. General industry standards.

A. The occupational safety or health standards adopted as rules or regulations by the board either directly or by reference, from 29 CFR Part 1910 shall apply by their own terms to all employers and employees at places of employment covered by the Virginia State Plan for Occupational Safety and Health.

B. The employer shall comply with the manufacturer's specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of all machinery, vehicles, tools, materials and equipment, unless specifically superseded by a more stringent corresponding requirement in 29 CFR Part 1910. The use of any machinery, vehicle, tool, material or equipment that is not in compliance with any applicable requirement of the manufacturer is prohibited, and shall either be identified by the employer as unsafe by tagging or locking the controls to render them inoperable or be physically removed from its place of use or operation.

16VAC25-60-130. Construction industry standards.

A. The occupational safety or health standards adopted as rules or regulations by the Virginia Safety and Health Codes Board either directly, or by reference, from 29 CFR Part 1926 shall apply by their own terms to all employers and employees engaged in either construction work or construction related activities covered by the Virginia State Plan for Occupational Safety and Health.

B. The employer shall comply with the manufacturer's specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of all machinery, vehicles, tools, materials and equipment, unless specifically superseded by a more stringent corresponding requirement in 29 CFR Part 1926. The use of any machinery, vehicle, tool, material or equipment that is not in compliance with any applicable requirement of the manufacturer is prohibited, and shall either be identified by the employer as unsafe by tagging or locking the controls to render them inoperable or be physically removed from its place of use or operation.

1. C. For the purposes of the applicability of such Part 1926 standards, the key criteria utilized to make such a decision shall be the activities taking place at the worksite, not the primary business of the employer. Construction work shall generally include any building, altering, repairing, improving, demolishing, painting or decorating any structure, building, highway, or roadway; and any draining, dredging, excavation, grading or similar work upon real property. Construction also generally includes work performed in traditional construction trades such as carpentry, roofing, masonry work, plumbing, trenching and excavating, tunneling, and electrical work. Construction does not include maintenance, alteration or repair of mechanical devices, machinery, or equipment, even when the mechanical device, machinery or equipment is part of a pre-existing structure.

D. The employer shall comply with the Virginia Department of Transportation (VDOT) Work Area Protection Manual in lieu of the federal Manual on Uniform Traffic Control Devices (Part VI of the MUTCD, 1988 Edition, Revision 3, or Part VI of the MUTCD, Millennium Edition - referenced in 16VAC25-175-1926.200 through 16VAC25-175-1926.202) when working under a contract for construction, repair, or maintenance between the employer and the Commonwealth; agencies, authorities, or instrumentalities of the Commonwealth; or any political subdivision or public body of the Commonwealth when such contract stipulates employer compliance with the VDOT Work Area Protection Manual in effect at the time of contractual agreement.

2. E. Certain standards of 29 CFR Part 1910 have been determined by federal OSHA to be applicable to construction and have been adopted for this application by the board.

3. F. The standards adopted from 29 CFR Part 1910.19 and 29 CFR Part 1910.20 containing respectively, special provisions regarding air contaminants and requirements concerning access to employee exposure and medical records shall apply to construction work as well as general industry.

16VAC25-60-140. Agriculture standards.

A. The occupational safety or health standards adopted as rules or regulations by the board either directly, or by reference, from 29 CFR Part 1910 and 29 CFR Part 1928 shall apply by their own terms to all employers and employees engaged in either agriculture or agriculture related activities covered by the Virginia State Plan for Occupational Safety and Health.

B. For the purposes of applicability of such Part 1910 and Part 1928 standards, the key criteria utilized to make a decision shall be the activities taking place at the worksite, not the primary business of the employer. Agricultural operations shall generally include any operation involved in the growing or harvesting of crops or the raising of livestock or poultry, or activities integrally related to agriculture, conducted by a farmer or agricultural employer on sites such as farms, ranches, orchards, dairy farms or similar establishments. Agricultural operations do not include construction work as described in subdivision 1 subsection C of 16VAC25-60-130, nor does it do they include operations or activities substantially similar to those that occur in a general industry setting and are therefore not unique and integrally related to agriculture.

C. The employer shall comply with the manufacturer's specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of all machinery, vehicles, tools, materials and equipment, unless specifically superseded by a more stringent corresponding requirement in 29 CFR Part 1910 or 29 CFR Part 1928. The use of any machinery, vehicle, tool, material or equipment that is not in compliance with any applicable requirement of the manufacturer is prohibited, and shall either be identified by the employer as unsafe by tagging or locking the controls to render them inoperable or be physically removed from its place of use or operation.

16VAC25-60-150. Maritime standards.

A. The occupational safety or health standards adopted as rules or regulations by the board either directly, or by reference, from 29 CFR Part 1915, 29 CFR Part 1917, 29 CFR Part 1918, and 29 CFR Part 1919 shall apply by their own terms to all public sector employers and employees engaged in maritime related activities covered by the Virginia State Plan for Occupational Safety and Health.

B. The employer shall comply with the manufacturer's specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of all machinery, vehicles, tools, materials and equipment, unless specifically superseded by a more stringent corresponding requirement in Part 1915, 1917, 1918 or 1919. The use of any machinery, vehicle, tool, material or equipment that is not in compliance with any applicable requirement of the manufacturer is prohibited, and shall either be identified by the employer as unsafe by tagging or locking the controls to render them inoperable or be physically removed from its place of use or operation.

16VAC25-60-245. Take Use of administrative subpoenas to take and preserve testimony, examine witnesses, and administer oaths.

A. Subdivision 4 of § 40.1-6 of the Code of Virginia authorizes the commissioner, in the discharge of his duties, to take and preserve testimony, examine witnesses and administer oaths. In accordance with subdivision 5 of § 40.1-6 of the Code of Virginia, the Commissioner of Labor and Industry may appoint such representatives as are necessary to carry out the functions outlined in subdivision 4 of § 40.1-6 of the Code of Virginia. Such appointments shall be made in writing; identify the individual being appointed, the length of appointment, and the method of withdrawal of such appointment; and specify what duties are being prescribed.

B. The oath shall be administered by the commissioner's appointed representative to the witness as follows: "Do you swear or affirm to tell the truth."

C. Testimony given under oath shall be recorded by a court reporter.

D. Questioning of employers, owners, operators, agents or employees under oath shall be in private in accordance with subdivision 2 of § 40.1-49.8 of the Code of Virginia.

E. An employer's refusal to make an owner, operator, agent or employee available to the commissioner for examination under this section shall be considered a refusal to consent to the commissioner's inspection authority under § 40.1-49.8 of the Code of Virginia. Upon such refusal the commissioner may seek an administrative search warrant in accordance with the provisions contained in §§ 40.1-49.9 through 40.1-49.12 of the Code of Virginia, and obtain an order from the appropriate judge commanding the employer to make the subject owner, operator, agent or employee available for examination at a specified location by a date and time certain.

F. In accordance with § 40.1-10 of the Code of Virginia, if any person who may be sworn to give testimony shall willfully fail or refuse to answer any legal and proper question propounded to him concerning the subject of the examination under § 40.1-6 of the Code of Virginia, he shall be guilty of a misdemeanor. Such person, upon conviction thereof, shall be fined not exceeding $100 nor less than $25 or imprisoned in jail not exceeding 90 days or both. Any such refusal on the part of any person to comply with this section may be referred by the Commissioner of Labor and Industry to the appropriate attorney for the Commonwealth for prosecution.

Part VI
Citation and Penalty

16VAC25-60-260. Issuance of citation and proposed penalty.

A. Each citation shall be in writing and describe with particularity the nature of the violation or violations, including a reference to the appropriate safety or health provision of Title 40.1 of the Code of Virginia or the appropriate rule, regulation, or standard. In addition, the citation must fix a reasonable time for abatement of the violation. The citation will contain substantially the following: "NOTICE: This citation will become a final order of the commissioner unless contested within fifteen working days from the date of receipt by the employer." The citation may be delivered to the employer or his agent by the commissioner or may be sent by certified mail or by personal service to an officer or agent of the employer or to the registered agent if the employer is a corporation.

1. No citation may be issued after the expiration of six months following the occurrence of any alleged violation. The six-month time frame timeframe is deemed to be tolled on the date the citation is issued by the commissioner, without regard for when the citation is received by the employer. For purposes of calculating the six-month time frame timeframe for citation issuance, the following requirements shall apply:

a. 1. The six-month time frame timeframe begins to run on the day after the incident or event occurred or notice was received by the commissioner (as specified below), in accordance with § 1-210 A of the Code of Virginia. The word "month" shall be construed to mean one calendar month in accordance with § 1-223 of the Code of Virginia.

b. 2. An alleged violation is deemed to have "occurred" on the day it was initially created by commission or omission on the part of the creating employer, and every day thereafter that it remains in existence uncorrected.

c. 3. Notwithstanding subdivision 1 b 2 of this subsection, if an employer fails to notify the commissioner of any work-related incident resulting in a fatality or in the in-patient hospitalization of three or more persons within eight hours of such occurrence as required by § 40.1-51.1 D of the Code of Virginia, the six-month time frame timeframe shall not be deemed to commence until the commissioner receives actual notice of the incident.

d. 4. Notwithstanding subdivision 1 b 2 of this subsection, if the commissioner is first notified of a work-related incident resulting in an injury or illness to an employee(s) employee or employees through receipt of an Employer's Accident Report (EAR) form from the Virginia Workers' Compensation Commission as provided in § 65.2-900 of the Code of Virginia, the six-month time frame timeframe shall not be deemed to commence until the commissioner actually receives the EAR form.

e. 5. Notwithstanding subdivision 1 b 2 of this subsection, if the commissioner is first notified of a work-related hazard, or incident resulting in an injury or illness to an employee(s) employee or employees, through receipt of a complaint in accordance with 16VAC25-60-100 or referral, the six-month time frame timeframe shall not be deemed to commence until the commissioner actually receives the complaint or referral.

B. A citation issued under subsection A of this section to an employer who violates any VOSH law, standard, rule or regulation shall be vacated if such employer demonstrates that:

1. Employees of such employer have been provided with the proper training and equipment to prevent such a violation;

2. Work rules designed to prevent such a violation have been established and adequately communicated to employees by such employer and have been effectively enforced when such a violation has been discovered;

3. The failure of employees to observe work rules led to the violation; and

4. Reasonable steps have been taken by such employer to discover any such violation.

C. For the purposes of subsection B of this section only, the term "employee" shall not include any officer, management official, or supervisor having direction, management control, or custody of any place of employment which was the subject of the violative condition cited.

D. The penalties as set forth in § 40.1-49.4 of the Code of Virginia shall also apply to violations relating to the requirements for record keeping recordkeeping, reports, or other documents filed or required to be maintained and to posting requirements.

E. In determining the amount of the proposed penalty for a violation the commissioner will ordinarily be guided by the system of penalty adjustment set forth in the VOSH Field Operations Manual. In any event the commissioner shall consider the gravity of the violation, the size of the business, the good faith of the employer, and the employer's history of previous violations.

F. On multi-employer worksites for all covered industries, citations shall normally be issued to an employer whose employee is exposed to an occupational hazard (the exposing employer). Additionally, the following employers shall normally be cited, whether or not their own employees are exposed:

1. The employer who actually creates the hazard (the creating employer);

2. The employer who is either:

a. Responsible, by contract or through actual practice, for safety and health conditions on the entire worksite, and has the authority for ensuring that the hazardous condition is corrected (the controlling employer); or

b. Responsible, by contract or through actual practice, for safety and health conditions for a specific area of the worksite, or specific work practice, or specific phase of a construction project, and has the authority for ensuring that the hazardous condition is corrected (the controlling employer); or

3. The employer who has the responsibility for actually correcting the hazard (the correcting employer).

G. A citation issued under subsection F of this section to an exposing employer who violates any VOSH law, standard, rule or regulation shall be vacated if such employer demonstrates that:

1. The employer did not create the hazard;

2. The employer did not have the responsibility or the authority to have the hazard corrected;

3. The employer did not have the ability to correct or remove the hazard;

4. The employer can demonstrate that the creating, the controlling and/or or the correcting employers, as appropriate, have been specifically notified of the hazards to which his employees were exposed;

5. The employer has instructed his employees to recognize the hazard and, where necessary, informed them how to avoid the dangers associated with it;

6. Where feasible, an exposing employer must have taken appropriate alternative means of protecting employees from the hazard; and

7. When extreme circumstances justify it, the exposing employer shall have removed his employees from the job.

H. The commissioner's burden of proving the basis for a VOSH citation, penalty, or order of abatement is by a preponderance of the evidence.

I. The burden of proof in establishing an affirmative defense to a VOSH citation resides with the employer.

VA.R. Doc. No. R16-4561; Filed November 1, 2016, 3:42 p.m.