Bill Text: MI SB1336 | 2011-2012 | 96th Legislature | Introduced
Bill Title: Labor; health and safety; occupational health standards commission; eliminate and update with federal hazard communication standards. Amends secs. 5, 14a, 14b, 14d, 14e, 14f, 14h, 14j, 14k, 14l, 24, 31, 54 & 63 of 1974 PA 154 (MCL 408.1005 et seq.) & repeals sec. 23 of 1974 PA 154 (MCL 408.1023). TIE BAR WITH: HB 5917'12, HB 5922'12, SB 1335'12
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2012-12-31 - Assigned Pa 0447'12 With Immediate Effect [SB1336 Detail]
Download: Michigan-2011-SB1336-Introduced.html
SENATE BILL No. 1336
September 27, 2012, Introduced by Senator COLBECK and referred to the Committee on Reforms, Restructuring and Reinventing.
A bill to amend 1974 PA 154, entitled
"Michigan occupational safety and health act,"
by amending sections 5, 14a, 14b, 14d, 14e, 14f, 14h, 14j, 14k, 14l,
24, 31, 54, and 63 (MCL 408.1005, 408.1014a, 408.1014b, 408.1014d,
408.1014e, 408.1014f, 408.1014h, 408.1014j, 408.1014k, 408.1014l,
408.1024, 408.1031, 408.1054, and 408.1063), sections 5, 31, and 63
as amended and sections 14a, 14b, 14d, 14e, 14h, 14j, 14k, and 14l
as added by 1986 PA 80, section 14f as amended by 1996 PA 70, and
section 24 as amended by 1991 PA 105; and to repeal acts and parts
of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 5. (1) "Employee" means a person permitted to work by an
employer.
(2) "Employer" means an individual or organization, including
the state or a political subdivision, which employs 1 or more
persons.
(3) "Imminent danger" means a condition or practice in a place
of employment which is such that a danger exists which could
reasonably be expected to cause death or serious physical harm
either immediately or before the imminence of the danger can be
eliminated through the enforcement procedures otherwise provided. A
container of an unknown and unlabeled chemical or a container of
hazardous
chemicals that is not labeled or for which a material
safety data sheet is not available as required by the standard
incorporated by reference in section 14a shall be considered an
imminent danger after meeting the provisions of section 31.
(4) "Inspection" means the examination or survey of a place of
employment to detect the presence of an existing or potential
occupational safety or health hazard or to determine compliance
with this act, rules or standards promulgated, or orders issued
pursuant to this act.
(5) "Investigation" means the detailed evaluation or study of
working conditions, including equipment, processes, substances, air
contaminants, or physical agents with respect to the actual or
potential occurrence of occupational accidents, illnesses, or
diseases.
Sec. 14a. (1) The occupational safety and health hazard
communication standard that has been adopted or promulgated by the
United States department of labor and has been codified at 29
C.F.R.
CFR 1910.1200 as of the effective date of the
amendatory act
that
adds this section May 25,
2012 is incorporated by reference
and
shall have has the same force and effect as a rule promulgated
pursuant
to under this act. In addition to the standard
incorporated by reference in this subsection, sections 14b to 14l
shall
apply to an employer subject to
this act. The applicability
of the standard incorporated by reference in this subsection and of
sections 14b to 14l is subject to subsections (4), (5), (6), and
(7).
(2)
When If a rule or standard that is continued pursuant to
section
24(3) 24(1) is in conflict with or covers the same or
similar subject as a standard incorporated by reference pursuant to
subsection (1), the federal standard so incorporated by reference
shall
govern, governs and the state rule or standard continued
pursuant
to section 24(3) 24(1) is rescinded.
(3)
The department of labor licensing
and regulatory affairs
shall administer and enforce the provisions of the standard
incorporated
by reference in subsection (1) relative to
occupational
safety. The department of public health shall
administer
and enforce the provisions of the standard incorporated
by
reference in subsection (1) relative to occupational health. The
departments
of public health and labor shall administer and enforce
the
provisions of the standard incorporated by reference in
subsection
(1) in a manner that is consistent
with the
administration and enforcement of the standard by the federal
occupational safety and health administration.
(4) Beginning November 25, 1985, employers who are chemical
manufacturers in a classification provided by sector 31-33 —
manufacturing, of the North American industry classification
system, United States, 1997, published by the office of management
and budget or in a standard industrial classification of 20 through
39 of the standard industrial classification code published by the
federal department of management and budget, importers, and
distributors shall label containers of hazardous chemicals leaving
their
workplaces, provide material safety data sheets with initial
shipments, and otherwise comply with any applicable provision of
the standard incorporated by reference pursuant to subsection (1)
and of sections 14b to 14l. A chemical manufacturer, importer, or
distributor
subject to this subsection shall provide a material
safety data sheet and an appropriately labeled container to each
employer in this state, regardless of the employer's standard
industrial classification in the standard industrial classification
code, who purchases a hazardous chemical.
(5) Beginning May 25, 1986, an employer in a classification
provided by sector 31-33 — manufacturing, of the North American
industry classification system, United States, 1997, published by
the office of management and budget or in a standard industrial
classification of 20 through 39 of the standard industrial
classification code published by the federal department of
management and budget shall comply with the requirements of the
standard incorporated by reference pursuant to subsection (1) and
with sections 14b to 14l with respect to the use of hazardous
chemicals in the workplace.
(6) Beginning February 25, 1987, an employer who is subject to
this act but who is not otherwise specifically described in
subsections
(4) and or (5) shall comply with the requirements of
the standard incorporated by reference pursuant to subsection (1)
and with sections 14b to 14l with respect to the use of hazardous
chemicals in the workplace. However, instead of complying with any
conflicting provision of the standard incorporated by reference in
subsection
(1), an employer who is described in this subsection is
required:shall do both of the following:
(a)
To provide Provide information and training only to
employees who are exposed to hazardous chemicals in the normal
course of employment or who are likely to be exposed to hazardous
chemicals in the event of an emergency.
(b) In the case where a hazardous chemical is mixed or
combined with any other chemical or hazardous chemical by the
employer,
to maintain and provide a material safety data sheet for
each
constituent hazardous chemical and to maintain a material
identification system that identifies to employees the appropriate
material
safety data sheets.
(7) The standard incorporated by reference in subsection (1),
this section, and sections 14b to 14l shall not be construed to
require an employer in a classification provided by sector 31-33 —
manufacturing, of the North American industry classification
system, United States, 1997, published by the office of management
and budget or in a standard industrial classification other than 20
through 39 of the standard industrial classification code published
by the federal department of management and budget to evaluate
chemicals, to develop labels for containers of hazardous chemicals,
or
to develop material safety data sheets.
Sec. 14b. In nonemergency situations, a chemical manufacturer,
importer, or employer claiming a trade secret, upon request, shall
disclose a specific chemical identity, percentage composition, or
both, otherwise permitted to be withheld under the standard
incorporated by reference in section 14a, in addition to a health
professional
as specified in 29 C.F.R. CFR
1910.1200(i)(3), to an
occupational health nurse providing medical or other occupational
health services to exposed employees, to an authorized employee
representative of an exposed employee, and to an exposed employee,
if the occupational health nurse, the representative, and the
employee
comply with the requirements described in 29 C.F.R. CFR
1910.1200(i)(3) and (4).
Sec.
14d. (1) Upon request of the director, of the department
of
public health, an employer who
claims a trade secret under the
standard incorporated by reference by section 14a shall support the
trade secret claim. Subject to subsection (2), the director shall
consider the following factors in determining whether a specific
chemical identity may be withheld as a trade secret:
(a) The extent to which the information is known outside the
employer's business.
(b) The extent to which it is known by employees and others
involved in the employer's business.
(c) The extent of measures taken by the employer to guard the
secrecy of the information.
(d) The value of the information to the employer and the
employer's competitors.
(e) The amount of effort and money expended by the employer in
developing the information.
(f) The ease or difficulty with which the information could be
properly acquired or duplicated by others.
(2) The determination made by the director under subsection
(1) shall not uphold as a trade secret any chemical identity
information that is readily discoverable through reverse
engineering.
(3) This section shall not be construed to require the prior
approval
of trade secret claims by the director. of the department
of
public health or the director of the department of labor.
(4) An exposed employee, a health professional providing
medical or other occupational health services to exposed employees,
or an authorized employee representative of an exposed employee may
petition
the director of the department of public health to review
a denial of a written request for disclosure of a specific chemical
identity. This review shall be conducted as a contested case
pursuant
to the administrative procedures act of 1969, Act No. 306
of
the Public Acts of 1969, being sections 24.201 to 24.328 of the
Michigan
Compiled Laws, 1969 PA 306,
MCL 24.201 to 24.328, and
shall be confidential. The director shall review the assertion of
trade secrecy and make a determination in accordance with the
principles provided in this section and the standard incorporated
by reference in section 14a. In preparing the final order, the
director shall consider and require any prudent measures necessary
to protect the health of employees or the public in general while
maintaining the confidentiality of any trade secrets.
(5)
The director of public health may revoke any order entered
under subsection (4) upholding a trade secret claim after a hearing
involving the parties of interest upon showing that a party has not
complied with an order issued pursuant to subsection (4).
(6) Records and information obtained by any department,
commission,
or public agency related to a review by the director of
public
health under subsection (4) and to
information determined by
the
director to be a trade secret in that review shall be is exempt
from
disclosure under the freedom of information act, Act No. 442
of
the Public Acts of 1976, being sections 15.231 to 15.246 of the
Michigan
Compiled Laws.1976 PA 442,
MCL 15.231 to 15.246.
(7) Notwithstanding that information has been claimed as a
trade
secret pursuant to 29 C.F.R. CFR
1910.1200(i) or has been
upheld
by the director as a trade secret pursuant to under this
section, a chemical manufacturer, importer, or employer shall
provide the specific chemical identity and percentage composition
of
a hazardous chemical to the director of public health when the
director requests that information in the discharge of the
director's duties under this act.
Sec. 14e. In order to educate employers, employees, and the
public about the hazards of exposure to hazardous chemicals and the
requirements of the occupational safety and health hazard
communication standard incorporated by reference in section 14a and
the
requirements of sections 14b to 14l, the departments
of public
health
and labor department of
licensing and regulatory affairs
shall distribute periodically public service announcements to
newspapers and television and radio stations throughout this state.
Sec. 14f. (1) An employer engaged in agricultural operations
is not required to comply with the standard incorporated by
reference in section 14a or sections 14b to 14 l for a hazardous
chemical that is regulated under the federal insecticide,
fungicide,
and rodenticide act, chapter 125, 86 Stat. 973, 7 U.S.C.
USC 136 to 136i and 136j to 136y, or part 83 (pesticide control) of
the
natural resources and environmental protection act, Act No. 451
of
the Public Acts of 1994, being sections 324.8301 to 324.8336 of
the
Michigan Compiled Laws, 1994
PA 451, MCL 324.8301 to 324.8336,
and any rules or regulations promulgated under those acts.
(2) The director of the department of agriculture and rural
development at least annually shall certify to the department of
public
health licensing and
regulatory affairs a list of chemicals
regulated by the acts described in subsection (1).
Sec. 14h. An employer engaged in construction operations may
satisfy the requirements of the standard incorporated in section
14a
and sections 14b to 14 l 14l that
a material safety data sheet
be maintained for each hazardous chemical in the workplace by
maintaining
material safety data sheets in 1 or more central
locations
at a job site.jobsite.
Sec. 14j. An employer subject to the standard incorporated by
reference in section 14a and to sections 14b to 14l shall post signs
throughout the workplace advising employees of all of the
following:
(a)
The location of the material safety data sheets for the
hazardous chemicals produced or used in the workplace and the name
of the person from whom to obtain the sheets.
(b) That the employer is prohibited from discharging or
discriminating against an employee who exercises the rights
regarding information about hazardous chemicals in the workplace
afforded by the standard incorporated by reference in section 14a
and by sections 14b to 14l.
(c) That, as an alternative to requesting the employer for a
material
safety data sheet for a hazardous
chemical in the
workplace,
the employee may obtain a copy of the material safety
data
sheet from the department of public health. licensing and
regulatory affairs. The sign shall include the address and
telephone
number of the division of the department of public health
licensing and regulatory affairs that has the responsibility of
responding to such requests.
Sec. 14k. (1) An employer who is subject to the standard
incorporated by reference in section 14a and to sections 14b to 14l
shall
organize the material safety data sheets for the hazardous
chemicals in the workplace in a systematic and consistent manner
and
shall train employees in locating particular material safety
data sheets.
(2) Not later than 5 working days after receipt of a new or a
revised
material safety data sheet, the employer shall post for a
period of 10 working days a notice of the existence of the new or
revised sheet and directions for locating the new or revised sheet
according to the method used by the employer for organizing
material
safety data sheets.
Sec. 14l. The failure of an employer who is subject to the
standard incorporated by reference in section 14a and to this
section and sections 14b to 14k to provide an exposed employee with
access
to the most current material safety data sheet available to
the employer shall not be considered by the department as a
violation for which a de minimis notice of violation may be issued
under
section 33(5). The department may consider such a the
violation to be a serious violation or a violation not of a serious
nature for which a citation may be issued under section 35.
Sec.
24. (1) Before a proposed standard, except an emergency
standard,
is promulgated, the commission shall appoint and consult
with
an advisory committee which shall be representative of the
major
interests affected by the proposed standard. The members of
the
advisory committee shall be selected on the basis of their
experience
and competence in the subject of the proposed standard.
At
least 1 member of each advisory committee shall be a person who
devotes
a major portion of time to occupational health functions.
(2)
The per diem compensation and the schedule for
reimbursement
of expenses for members of the occupational health
standards
advisory committees shall be established annually by the
legislature.
(1) (3)
Standards governing occupational
health promulgated by
the
director of public health that are in effect on January 1, 1975
the effective date of the amendatory act that repealed section 23
of this act are continued under section 31 of the administrative
procedures
act of 1969, Act No. 306 of the Public Acts of 1969, as
amended,
being section 24.231 of the Michigan Compiled Laws 1969 PA
306, MCL 24.231.
(2) (4)
The occupational health
standards commission director
shall
promulgate an occupational health standard pursuant to Act
No.
306 of the Public Acts of 1969, as amended, being sections
24.201
to 24.328 of the Michigan Compiled Laws, the administrative
procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, except
for
standards adopted by reference pursuant to section 14. Until
April
1, 1992, adoption of a standard shall be by a majority of the
members
present if a quorum is present. Beginning April 1, 1992,
any
action taken by the occupational health standards commission
requires
an affirmative vote of not less than 4 members of the
commission,
including at least 1 representative of labor and 1
representative
of management.
(3) (5)
When promulgating occupational
health standards, the
occupational
health standards commission director shall promulgate
a standard that most adequately assures, to the extent feasible and
on the basis of the best available evidence, that an employee will
not suffer material impairment of health or functional capacity,
even if the employee has regular exposure to a hazard dealt with by
the standard for the period of his or her working life.
(4) (6)
The director of public health shall
promulgate an
emergency
standard pursuant to section 48 of Act No. 306 of the
Public
Acts of 1969, as amended, being section 24.248 of the
Michigan
Compiled Laws, when the
administrative procedures act of
1969, 1969 PA 306, MCL 24.248, if the director finds that employees
are exposed to substances or agents determined to be toxic or
physically harmful and the emergency standard is necessary to
protect
employees from that danger. If the director of public
health
is promulgating promulgates an emergency standard on a
matter
addressed by a federal standard, the director of public
health
shall promulgate a standard that is
substantially similar to
the federal standard unless he or she determines and certifies that
the federal standard is clearly inconsistent with the criteria set
forth
in section 9 or 24. , or both.
(5) (7)
A An occupational health standard shall prescribe
appropriate forms of warning that are necessary to insure that
employees are apprised of health hazards to which they are exposed,
relevant symptoms, and the conditions and precautions for safe use
or exposure, including appropriate emergency treatment. If
appropriate, a standard shall prescribe suitable protective
equipment, control, or technological procedures to be used and
shall require an employer to monitor or measure employee exposure,
to allow employees or their representatives to observe the
monitoring and have access to the records of the monitoring, and to
conduct the monitoring in a manner that is necessary for the
protection of the employees' health. Former employees shall have
access to the records indicating their exposure to toxic materials
and harmful physical agents.
(6) (8)
If appropriate, the occupational
health standards
commission
director shall prescribe by standard that medical
examinations or tests are made available, at the employer's cost,
to employees to determine if they are adversely affected by
exposure to health hazards. If the examination is performed by a
physician other than a physician who is retained for that purpose
by the employer, the employer is responsible only for the
reasonable costs of the examination, and only for costs related to
the performance of the examination required by the standard. The
results of the examinations or tests shall be furnished to the
employer, the employee, and upon request of the employee, to the
employee's
personal physician. , and upon Upon request of the
director, of
public health, the employer
shall furnish results of
the
examinations or tests to the director. of
public health by the
employer.
However, this act does not
authorize or require medical
examinations, immunizations, or treatments for those who object to
them
on religious grounds, except where if necessary for the
protection of the health or safety of others.
Sec. 31. (1) When and as soon as a department representative
determines that an imminent danger exists in a place of employment,
the department representative shall inform the employer and the
affected employees of a determination of the imminent danger. The
department representative immediately shall recommend to the
appropriate
department director that an order
be issued to require
that steps be taken as may be necessary to avoid, correct, or
remove the imminent danger. After receiving authorization for the
issuance
of an order from the appropriate department director, the
department representative shall apply a tag to the equipment or
process
which that is the source of the imminent danger identifying
that an imminent danger exists. The tag shall be removed only by
the department representative. At request of the employer, an area
supervisor shall, within 24 hours after a request, make an on site
review of any tagging and recommend continuance or removal. The
order shall prohibit the employment or presence of an individual in
locations or under conditions where imminent danger exists, except
individuals whose presence is necessary to avoid, correct, or
remove the imminent danger in a safe and orderly manner. In tagging
the
equipment or process which that
is the source of imminent
danger and in issuing the order, consideration shall be given to
any necessity to maintain the capacity of a continuous process
operation and to the reestablishment of normal operations without a
complete cessation of operations.
(2) An employer shall not permit an employee, other than an
employee whose presence is necessary to avoid, correct, or remove
the imminent danger, to operate equipment or engage in a process
which
that has been tagged by the department and which that is
the
subject of an order issued by the department identifying that an
imminent danger exists. An employee who suffers a loss of wages or
fringe benefits or is in any manner discriminated against for
refusing
to operate equipment or engage in a process which that has
been
tagged by the department and which that is the subject of an
order issued by the department, as provided in this section, may
file
a discrimination complaint, and the department of labor
licensing and regulatory affairs may order appropriate relief as
provided in section 65. This section does not prohibit an employer
from assigning an employee to an operation not affected by the
imminent danger situation, subject to any collective bargaining
agreement.
(3) Upon failure of the employer to promptly comply with a
department
order, as described in subsection (1), the appropriate
department shall petition the circuit court having jurisdiction to
restrain
a condition or practice in a place of employment which
that
the department determines causes has determined to cause the
imminent danger.
(4) If the department arbitrarily or capriciously fails to
seek relief under this section, an employee who may be injured by
reason of the failure, or the representative of those employees,
may bring action against the department in the circuit court having
jurisdiction for a writ of mandamus to compel the department to
seek an order and for further relief, as may be appropriate.
(5)
The department of public health or the department of labor
licensing and regulatory affairs shall respond within 24 hours
after receipt of an imminent danger complaint concerning an unknown
and unlabeled container of chemicals or an imminent danger
complaint concerning a container of hazardous chemicals that is not
labeled
or for which a material safety data sheet is not available
as required by the standard incorporated by reference in section
14a
and by sections 14b to 14 l.14l.
(6) Before a department representative seeks authorization to
issue an order pursuant to the procedures prescribed in subsection
(1), an employer shall be given a reasonable opportunity to
identify,
label, or provide the material safety data sheet for the
container
which that is the subject of the imminent danger
determination.
Sec. 54. (1) A safety education and training division is
created
within the department of labor.licensing
and regulatory
affairs.
(2) The functions of the safety education and training
division shall include:
(a) The development and application of a statewide safety
education and training program to familiarize employers,
supervisors, employees, and union leaders with techniques of
accident investigation and prevention.
(b) The development and utilization of consultative
educational techniques to achieve long-range solutions to
occupational safety problems.
(c)
The development of training programs for the department of
labor
safety compliance staff.
(d) The acquisition, development, and distribution of
occupational safety pamphlets, booklets, brochures, and other
appropriate safety media as may be useful to accomplish the
objectives
of this the safety
education and training division.
(e) The conduct of other activities as necessary for the
implementation of an effective safety education and training
program.
(f) The development and administration of a program for
employers, with special emphasis on small business employers,
providing technical and educational assistance.
(g) The development and implementation of a training and
education program for department staff engaged in the
administration and enforcement of this act.
(3) The department shall publish a newsletter at least
quarterly.
(4)
When a commission or the board, or the director of labor
or
the director of public health promulgates
a standard or a rule
or issues an order, a brief statement shall be included indicating
the reasons for the action, which shall be published in the
newsletter published under subsection (3).
Sec. 63. (1) Information reported to or otherwise obtained by
the
department of labor or the department of public health,
licensing and regulatory affairs in connection with an inspection,
investigation, or proceeding under this act that contains or that
might reveal a trade secret, including information required to be
made
available under sections 14a through 14l and section 24(9)
and
(10),
24(5) and (6) shall be considered confidential. In a
proceeding
under this act, the department of public health director
shall promulgate rules for the purpose of protecting trade secrets
regarding information required to be made available under sections
14a
through 14l and section 24(9) and
(10), 24(5) and (6), and the
appropriate
department, the board, or the court
shall issue orders
as may be appropriate to protect the confidentiality of trade
secrets and to carry out the objectives of this act.
(2) Except as otherwise provided by this subsection and
subsection (1), information reported to or otherwise obtained by a
department from an employee in connection with an inspection,
investigation, or proceeding under this act shall be made available
to
the public pursuant to the freedom of information act, Act No.
442
of the Public Acts of 1976, as amended, being sections 15.231
to
15.246 of the Michigan Compiled Laws. 1976 PA 442, MCL 15.231 to
15.246. The identity of an employee or any information that may
lead to the identification of an employee who provides information
pertaining
to a possible violation or violations of this act shall
be
is exempt from disclosure.
Enacting section 1. Section 23 of the Michigan occupational
safety and health act, 1974 PA 154, MCL 408.1023, is repealed.
Enacting section 2. This amendatory act does not take effect
unless all of the following bills of the 96th Legislature are
enacted into law:
(a) House Bill No. 5922.
(b) House Bill No. 5917.
(c) Senate Bill No. 1335.
