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AN ACT relating to occupational safety and health. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 338.015 is amended to read as follows: 3
As used in this chapter: 4
(1) "Employer" shall mean any entity for whom a person is employed except those 5
employers excluded in KRS 338.021; 6
(2) "Employee" shall mean any person employed except those employees excluded in 7
KRS 338.021; 8
(3) The term "occupational safety and health standard" means a standard which 9
requires conditions, or the adoption or use of one (1) or more practices, means, 10
methods, operations, or processes, reasonably necessary or appropriate to provide 11
safe or healthful employment and places of employment. "Standard" has the same 12
meaning as and includes the words "regulation" and "rule"; 13
(4) "Occupational safety and health hazard" means any practice or condition in a place 14
of employment which may be deemed detrimental to the safety and health of 15
employees; 16
(5) "Occupational injury or illness" means any abnormal condition or disorder of an 17
employee caused by exposure to factors associated with his or her employment; 18
(6) "Board" means the Kentucky Occupational Safety and Health Standards Board 19
established under this chapter; 20
(7) "Commissioner" means the commissioner of the Department of Workplace 21
Standards under the direction and supervision of the secretary of the Education and 22
Labor Cabinet; 23
(8) "Review commission" means the Kentucky Occupational Safety and Health Review 24
Commission established under this chapter; 25
(9) The term "national consensus standard" means any occupational safety and health 26
standard or modification thereof which has been adopted and promulgated by a 27 UNOFFICIAL COPY 25 RS HB 398/GA
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nationally recognized standards-producing organization; 1
(10) The term "established federal standard" means any operative occupational safety 2
and health standard established by any agency of the United States government; 3
(11) "Department" means the Department of Workplace Standards;[ and] 4
(12) "Secretary" means the secretary of the Education and Labor Cabinet; and 5
(13) "Qualified representative" means a person who is reasonably necessary to 6
conduct an inspection based on their relevant scientific, technical, or specialized 7
knowledge, skill, experience, training, or education. 8
Section 2. KRS 338.062 is amended to read as follows: 9
[After July 1, 2021, neither ]The Kentucky Occupational Safety and Health Standards 10
board,[ nor] the secretary, the secretary's designee, the commissioner, and the 11
commissioner's authorized representative shall not adopt, [or ]promulgate, or enforce 12
any occupational safety and health administrative regulation that the Occupational Safety 13
and Health Administration or the United States Department of Labor has not 14
promulgated, or that is more stringent than the corresponding federal provision enforced 15
by the United States Department of Labor under the Occupational Safety and Health Act 16
of 1970. Whereas the Occupational Safety and Health Act of 1970 does not apply to 17
public employees, the cabinet shall retain the authority to promulgate and enforce, as 18
necessary, administrative regulations pertaining to public employees. 19
Section 3. KRS 338.091 is amended to read as follows: 20
(1) Any party adversely affected or aggrieved by a final order of the review 21
commission may appeal within thirty (30) days to the Franklin Circuit Court on the 22
record for a review of such order. No new evidence may be introduced in the 23
Circuit Court. An appeal may be taken to the Court of Appeals from any decision of 24
the Circuit Court under this section. 25
(2) On appeal, the Franklin Circuit Court may award actual expenses incurred, 26
including court costs and attorney's fees, against the department. 27 UNOFFICIAL COPY 25 RS HB 398/GA
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(3) The commencement of a proceeding[proceedings] under this section shall [not, 1
unless ordered by the court, ]operate as a stay of an order of the review 2
commission. 3
Section 4. KRS 338.111 is amended to read as follows: 4
Representatives[A representative] of the employer shall be given the opportunity to 5
accompany the commissioner or the authorized representative of the commissioner 6
during the physical inspection of any place of employment as authorized by KRS 7
338.101. A qualified[and a] representative authorized by the employee may[employees 8
shall] be given an opportunity to accompany the representative of the commissioner 9
during the physical inspection of any place of employment related to occupational safety 10
and health as authorized by KRS 338.101. If there is no qualified representative 11
authorized by the employee [representative ]available at the time of the physical 12
inspection, the commissioner's representative may[shall] consult with a reasonable 13
number of employees concerning matters related to[of] occupational safety and health in 14
the place of employment. The representative of the commissioner shall be responsible for 15
the conduct[in full charge] of the inspection and may[, including the right to] limit the 16
number of representatives on the inspection team. 17
Section 5. KRS 338.121 is amended to read as follows: 18
(1) Any current employee, or qualified representative authorized by a current 19
employee[of employees], who believes that a violation of an occupational safety 20
and health standard exists that threatens physical harm, or that an imminent danger 21
exists in their workplace, may request an inspection by giving notice to the 22
commissioner of such violation or danger. Any such notice shall be reduced to 23
writing, shall set forth with reasonable particularity the grounds for the notice, 24
including the date the violation is alleged to have occurred, and shall be signed by 25
the employee[employees] or the qualified representative authorized by the 26
employee[ of employees], and a copy shall be provided to the employer or the 27 UNOFFICIAL COPY 25 RS HB 398/GA
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employer's agent no later than at the time of inspection, except that, upon 1
written[the] request of the employee[person] giving such notice, his or her name 2
[and the names of individual employees referred to therein ]shall not appear in such 3
copy. 4
(2) If upon receipt of notification, reasonable grounds evidence any[are believed to 5
exist for such] violation or danger in the workplace, then a special inspection shall 6
be made in accordance with the provisions of KRS 338.101 and 338.111. If no 7
reasonable grounds evidence a potential[are believed to exist for such] violation 8
or[of] danger, then the commissioner shall notify the employee or the qualified 9
representative authorized by the employee [of the employees ]in writing of such 10
determination. 11
(3) (a) No person shall discharge or in any manner discriminate against any 12
employee because such employee has filed any complaint or instituted or 13
caused to be instituted any proceeding under or related to this chapter or has 14
testified or is about to testify in any such proceeding or because of the 15
exercise by such employee on behalf of himself or herself or others of any 16
right afforded by this chapter; and 17
(b) Any employee who believes that he or she has been discharged or otherwise 18
discriminated against by any person in violation of this subsection may, 19
within thirty (30) days[a reasonable time] after such violation occurs, file a 20
complaint with the commissioner alleging such discrimination. Upon receipt 21
of such complaint, the commissioner shall cause such investigation to be 22
made as deemed appropriate. If upon such investigation, the commissioner 23
determines that the provisions of this subsection have been violated, he or she 24
shall issue a citation to the employer within six (6) months of the occurrence 25
of the violation, which may be challenged or contested in accordance with the 26
provisions of this chapter and the review commission may order [all 27 UNOFFICIAL COPY 25 RS HB 398/GA
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appropriate relief including ]the rehiring and reinstatement of the employee to 1
his or her former position with back pay.[ Upon an initial determination by the 2
commissioner that an employee has been discharged by an employer in 3
violation of subsection (3)(a) of this section, the secretary of the Education 4
and Labor Cabinet may order reinstatement of the employee pending a final 5
determination and order of the review commission.] 6
Section 6. KRS 338.141 is amended to read as follows: 7
(1) If upon inspection an authorized representative of the commissioner finds that an 8
employer has violated any requirement of this chapter, a citation shall be issued to 9
the employer. Each citation shall describe with particularity the alleged violation 10
including a reference to the provision of the act, standard, rule, or administrative 11
regulation alleged to have been violated. Each citation shall[,] establish the time 12
period permitted for correction of the alleged violation by fixing a reasonable date 13
for elimination of[by which] the alleged violation [shall be eliminated, ]and may 14
propose a[the] civil penalty to be paid. If within fifteen (15) working days from the 15
receipt of the citation an employer, employee, or the employee's representative [of 16
the employees ]fails to notify the commissioner that he or she intends to contest the 17
citation, then the citation shall be deemed a final order of the review commission 18
and not be subject to review by any court or agency. 19
(2) Any citation or a notice of a de minimis violation shall be promptly issued after 20
the inspection. A citation or a notice of a de minimis violation shall not be issued 21
more than six (6) months after the occurrence of any alleged violation. As used in 22
this subsection, a de minimis violation is a violation that has no direct or 23
immediate relationship to safety or health. A citation that is issued under this 24
section shall not be classified as a repeated violation when issued more than three 25
(3) consecutive years from the final order date of the previous citation. 26
(3)[(2)] The commissioner, upon determination that an employer is acting in good 27 UNOFFICIAL COPY 25 RS HB 398/GA
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faith to correct the cited violation, may grant additional time for 1
correction[compliance] upon application by the employer. 2
(4)[(3)] If an employer, employee, or the employee's representative [of the employees 3
]notifies the commissioner that he or she intends to challenge a citation issued 4
under this section or under KRS 338.131, the commissioner shall notify the review 5
commission of such notification and the review commission shall afford an 6
opportunity for a hearing. 7
(5)[(4)] In the case of any review proceedings initiated by an employer, employee, or 8
the employee's representative [of the employees ]under this chapter, the time period 9
permitted for correction of cited violations shall be tolled until the conclusion of 10
the action[may be extended by the review commission]. 11
Section 7. KRS 338.991 is amended to read as follows: 12
(1) Any employer who willfully or repeatedly violates the requirement of any section 13
of this chapter, including any standard, regulation, or order promulgated pursuant to 14
this chapter, may be assessed a civil penalty of up to seventy thousand dollars 15
($70,000) for each violation, but not less than five thousand dollars ($5,000) for 16
each willful violation. 17
(2) Any employer who has received a citation for a serious violation of the 18
requirements of any section of this chapter, including any standard, regulation, or 19
order promulgated pursuant to this chapter, shall be assessed a civil penalty of up to 20
seven thousand dollars ($7,000) for each violation. 21
(3) Any employer who has received a citation for a violation of the requirements of any 22
section of this chapter, including any standard, regulation, or order promulgated 23
pursuant to this chapter, and such violation is specifically determined not to be of a 24
serious nature, may be assessed a civil penalty of up to seven thousand dollars 25
($7,000) for each violation. 26
(4) Any employer who receives a notice of a de minimis violation of any section of 27 UNOFFICIAL COPY 25 RS HB 398/GA
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this chapter, including any standard, administrative regulation, or order 1
promulgated pursuant to this chapter, shall not be assessed a civil penalty. As 2
used in this subsection, a de minimis violation is a violation that has no direct or 3
immediate relationship to safety or health. 4
(5) Any employer who fails to correct a violation for which a citation has been issued 5
within the period permitted for its correction may be assessed a civil penalty of up 6
to seven thousand dollars ($7,000) for each day during which such failure or 7
violation continues. 8
(6)[(5)] Any employer found to be in violation of subsection (3) of KRS 338.121 shall 9
be assessed a civil penalty of up to ten thousand dollars ($10,000) for each 10
violation. 11
(7)[(6)] The review commission shall have the authority to modify all civil penalties 12
and fines provided for in this chapter. The review commission may, at its discretion, 13
suspend the time period allotted for correction of a violation during the review of an 14
appeal from the violation in question. 15
(8)[(7)] All civil penalties and fines collected under the provision of this chapter shall 16
be paid into the general fund. 17
(9)[(8)] Any employer or individual who knowingly makes any false statement, 18
representation, or certification in any application, record, report, plan, or other 19
document filed or required to be maintained pursuant to this chapter shall, upon 20
conviction, be punished by a fine of not more than ten thousand dollars ($10,000), 21
or by imprisonment for not more than six (6) months, or by both. 22
(10)[(9)] Any person who gives advance notice of any investigation or inspection to be 23
conducted under this chapter, without authority from the commissioner, shall, upon 24
conviction, be punished by a fine of not more than one thousand dollars ($1,000), or 25
by imprisonment for not more than six (6) months, or by both. 26
(11)[(10)] Any employer or individual who willfully causes bodily harm to any 27 UNOFFICIAL COPY 25 RS HB 398/GA
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authorized representative of the commissioner while attempting to conduct an 1
investigation or inspection under the provisions of this chapter, shall, upon 2
conviction, be punished by a fine of not more than ten thousand dollars ($10,000), 3
or by imprisonment for not more than one (1) year, or by both. 4
(12)[(11)] As used in this section, a serious violation shall be deemed to exist in a place 5
of employment if there is a substantial probability that death or serious physical 6
harm could result from a condition which exists, or from one (1) or more practices, 7
means, methods, operations, or processes which have been adopted or are in use, in 8
such place of employment unless the employer did not, and could not with the 9
exercise of reasonable diligence, know of the presence of the violation. 10