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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 338.062 is amended to read as follows: 3
[After July 1, 2021, neither ]The Kentucky Occupational Safety and Health Standards 4
board,[ nor] the secretary, the secretary's designee, the commissioner, and the 5
commissioner's authorized representative shall not adopt, [or ]promulgate, or enforce 6
any occupational safety and health administrative regulation that the Occupational Safety 7
and Health Administration or the United States Department of Labor has not 8
promulgated, or that is more stringent than the corresponding federal provision enforced 9
by the United States Department of Labor under the Occupational Safety and Health Act 10
of 1970. Whereas the Occupational Safety and Health Act of 1970 does not apply to 11
public employees, the cabinet shall retain the authority to promulgate and enforce, as 12
necessary, administrative regulations pertaining to public employees. 13
Section 2. KRS 338.091 is amended to read as follows: 14
(1) Any party adversely affected or aggrieved by a final order of the review 15
commission may appeal within thirty (30) days to the Franklin Circuit Court on the 16
record for a review of such order. No new evidence may be introduced in the 17
Circuit Court. An appeal may be taken to the Court of Appeals from any decision of 18
the Circuit Court under this section. 19
(2) On appeal, the Franklin Circuit Court may award actual expenses incurred, 20
including court costs and attorney's fees, against the department. 21
(3) The department shall promulgate administrative regulations in accordance with 22
KRS Chapter 13A to implement this section. The administrative regulations shall 23
comply with the Equal Access to Justice Act, 28 U.S.C. sec. 2412. 24
(4) The commencement of a proceeding[proceedings] under this section shall [not, 25
unless ordered by the court, ]operate as a stay of an order of the review 26
commission. 27 UNOFFICIAL COPY 25 RS HB 398/VO
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Section 3. KRS 338.111 is amended to read as follows: 1
(1) Representatives[A representative] of the employer shall be given the opportunity 2
to accompany the commissioner or the authorized representative of the 3
commissioner during the physical inspection of any place of employment as 4
authorized by KRS 338.101.[and] 5
(2) A representative authorized by the employees shall be given an opportunity to 6
accompany the representative of the commissioner during the physical inspection of 7
any place of employment related to occupational safety and health as authorized 8
by KRS 338.101. If there is no representative authorized by the 9
employees[employee representative] available at the time of the physical 10
inspection, the commissioner's representative shall consult with a reasonable 11
number of employees concerning matters related to[of] occupational safety and 12
health in the place of employment. 13
(3) The representative of the commissioner shall be responsible for the conduct[in full 14
charge] of the inspection and may[, including the right to] limit the number of 15
representatives on the inspection team. 16
Section 4. KRS 338.121 is amended to read as follows: 17
(1) Any employee, or representative authorized by the[of] employees, who believes 18
that a violation of an occupational safety and health standard exists that threatens 19
physical harm, or that an imminent danger exists in their workplace, may request 20
an inspection by giving notice to the commissioner of such violation or danger. Any 21
such notice shall be reduced to writing, shall set forth with reasonable particularity 22
the grounds for the notice, including the date the violation is alleged to have 23
occurred, and shall be signed by the employees or the representative authorized by 24
the[of] employees, and a copy shall be provided to the employer or the employer's 25
agent no later than at the time of inspection, except that, upon written[the] request 26
of an employee[the person] giving such notice, his or her name [and the names of 27 UNOFFICIAL COPY 25 RS HB 398/VO
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individual employees referred to therein ]shall not appear in such copy. 1
(2) If upon receipt of notification, reasonable grounds evidence any[are believed to 2
exist for such] violation or danger in the workplace, then a special inspection shall 3
be made in accordance with the provisions of KRS 338.101 and 338.111. If no 4
reasonable grounds evidence a potential[are believed to exist for such] violation 5
or[of] danger, then the commissioner shall notify the employee or the representative 6
authorized by[of] the employees in writing of such determination. 7
(3) (a) No person shall discharge or in any manner discriminate against any 8
employee because such employee has filed any complaint or instituted or 9
caused to be instituted any proceeding under or related to this chapter or has 10
testified or is about to testify in any such proceeding or because of the 11
exercise by such employee on behalf of himself or herself or others of any 12
right afforded by this chapter; and 13
(b) Any employee who believes that he or she has been discharged or otherwise 14
discriminated against by any person in violation of this subsection may, 15
within thirty (30) days[a reasonable time] after such violation occurs, file a 16
complaint with the commissioner alleging such discrimination. Upon receipt 17
of such complaint, the commissioner shall cause such investigation to be 18
made as deemed appropriate. If upon such investigation, the commissioner 19
determines that the provisions of this subsection have been violated, he or she 20
shall issue a citation to the employer within six (6) months of the occurrence 21
of the violation, which may be challenged or contested in accordance with the 22
provisions of this chapter and the review commission may order [all 23
appropriate relief including ]the rehiring and reinstatement of the employee to 24
his or her former position with back pay.[ Upon an initial determination by the 25
commissioner that an employee has been discharged by an employer in 26
violation of subsection (3)(a) of this section, the secretary of the Education 27 UNOFFICIAL COPY 25 RS HB 398/VO
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and Labor Cabinet may order reinstatement of the employee pending a final 1
determination and order of the review commission.] 2
Section 5. KRS 338.141 is amended to read as follows: 3
(1) If upon inspection an authorized representative of the commissioner finds that an 4
employer has violated any requirement of this chapter, a citation shall be issued to 5
the employer. Each citation shall describe with particularity the alleged violation, 6
including a reference to the provision of the act, standard, rule, or administrative 7
regulation alleged to have been violated. Each citation shall[,] establish the time 8
period permitted for correction of the alleged violation by fixing a reasonable date 9
for elimination of[by which] the alleged violation [shall be eliminated, ]and may 10
propose a[the] civil penalty to be paid. If within fifteen (15) working days from the 11
receipt of the citation an employer, employee, or the employees' representative [of 12
the employees ]fails to notify the commissioner that he or she intends to contest the 13
citation, then the citation shall be deemed a final order of the review commission 14
and not be subject to review by any court or agency. 15
(2) Any citation or a notice of a de minimis violation shall be promptly issued after 16
the inspection. A citation or a notice of a de minimis violation shall not be issued 17
more than six (6) months after the occurrence of any alleged violation. As used in 18
this subsection, a de minimis violation is a violation that has no direct or 19
immediate relationship to safety or health. A citation that is issued under this 20
section shall not be classified as a repeated violation when issued more than three 21
(3) consecutive years from the final order date of the previous citation. 22
(3)[(2)] The commissioner, upon determination that an employer is acting in good 23
faith to correct the cited violation, may grant additional time for 24
correction[compliance] upon application by the employer. 25
(4)[(3)] If an employer, employee, or the employees' representative [of the employees 26
]notifies the commissioner that he or she intends to challenge a citation issued 27 UNOFFICIAL COPY 25 RS HB 398/VO
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under this section or under KRS 338.131, the commissioner shall notify the review 1
commission of such notification and the review commission shall afford an 2
opportunity for a hearing. 3
(5)[(4)] In the case of any review proceedings initiated by an employer, employee, or 4
the employees' representative [of the employees ]under this chapter, the time period 5
permitted for correction of cited violations shall be tolled until the conclusion of 6
the action[may be extended by the review commission]. 7
Section 6. KRS 338.991 is amended to read as follows: 8
(1) Any employer who willfully or repeatedly violates the requirement of any section 9
of this chapter, including any standard, regulation, or order promulgated pursuant to 10
this chapter, may be assessed a civil penalty of up to seventy thousand dollars 11
($70,000) for each violation, but not less than five thousand dollars ($5,000) for 12
each willful violation. 13
(2) Any employer who has received a citation for a serious violation of the 14
requirements of any section of this chapter, including any standard, regulation, or 15
order promulgated pursuant to this chapter, shall be assessed a civil penalty of up to 16
seven thousand dollars ($7,000) for each violation. 17
(3) Any employer who has received a citation for a violation of the requirements of any 18
section of this chapter, including any standard, regulation, or order promulgated 19
pursuant to this chapter, and such violation is specifically determined not to be of a 20
serious nature, may be assessed a civil penalty of up to seven thousand dollars 21
($7,000) for each violation. 22
(4) Any employer who receives a notice of a de minimis violation of any section of 23
this chapter, including any standard, administrative regulation, or order 24
promulgated pursuant to this chapter, shall not be assessed a civil penalty. As 25
used in this subsection, a de minimis violation is a violation that has no direct or 26
immediate relationship to safety or health. 27 UNOFFICIAL COPY 25 RS HB 398/VO
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(5) Any employer who fails to correct a violation for which a citation has been issued 1
within the period permitted for its correction may be assessed a civil penalty of up 2
to seven thousand dollars ($7,000) for each day during which such failure or 3
violation continues. 4
(6)[(5)] Any employer found to be in violation of subsection (3) of KRS 338.121 shall 5
be assessed a civil penalty of up to ten thousand dollars ($10,000) for each 6
violation. 7
(7)[(6)] The review commission shall have the authority to modify all civil penalties 8
and fines provided for in this chapter. The review commission may, at its discretion, 9
suspend the time period allotted for correction of a violation during the review of an 10
appeal from the violation in question. 11
(8)[(7)] All civil penalties and fines collected under the provision of this chapter shall 12
be paid into the general fund. 13
(9)[(8)] Any employer or individual who knowingly makes any false statement, 14
representation, or certification in any application, record, report, plan, or other 15
document filed or required to be maintained pursuant to this chapter shall, upon 16
conviction, be punished by a fine of not more than ten thousand dollars ($10,000), 17
or by imprisonment for not more than six (6) months, or by both. 18
(10)[(9)] Any person who gives advance notice of any investigation or inspection to be 19
conducted under this chapter, without authority from the commissioner, shall, upon 20
conviction, be punished by a fine of not more than one thousand dollars ($1,000), or 21
by imprisonment for not more than six (6) months, or by both. 22
(11)[(10)] Any employer or individual who willfully causes bodily harm to any 23
authorized representative of the commissioner while attempting to conduct an 24
investigation or inspection under the provisions of this chapter, shall, upon 25
conviction, be punished by a fine of not more than ten thousand dollars ($10,000), 26
or by imprisonment for not more than one (1) year, or by both. 27 UNOFFICIAL COPY 25 RS HB 398/VO
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(12)[(11)] As used in this section, a serious violation shall be deemed to exist in a place 1
of employment if there is a substantial probability that death or serious physical 2
harm could result from a condition which exists, or from one (1) or more practices, 3
means, methods, operations, or processes which have been adopted or are in use, in 4
such place of employment unless the employer did not, and could not with the 5
exercise of reasonable diligence, know of the presence of the violation. 6