HB4604 102ND GENERAL ASSEMBLY

LRB102 23341 SPS 32507 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB4604

Introduced 1/21/2022, by Rep. Marcus C. Evans, Jr.

SYNOPSIS AS INTRODUCED:

820 ILCS 219/25
820 ILCS 219/60
820 ILCS 219/65
820 ILCS 219/80
820 ILCS 219/85
820 ILCS 219/90
820 ILCS 219/100
820 ILCS 219/110

Amends the Occupational Safety and Health Act. Provides that citations and notice of violations may be sent to an employer by email to an email address previously designated by the employer for purposes of receiving notice. Provides that a public employer that intentionally violates specified provisions may be assessed a civil penalty of not more than $10,000 per violation (rather than $10,000). Provides that a person may not discharge or in any way discriminate against an employee because the employee has discussed health or safety concerns with a co-worker or authorized employee representative. Provides that in discrimination actions the Department of Labor shall be represented by the Attorney General. Makes changes in provisions concerning occupational safety and health standards; employers' records; informal review; and hearings.

A BILL FOR

AN ACT concerning employment.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Occupational Safety and Health Act is amended by changing Sections 25, 60, 65, 80, 85, 90, 100, and 110 as follows:

(820 ILCS 219/25)

Sec. 25. Occupational safety and health standards.

(a) All federal occupational safety and health standards which the United States Secretary of Labor has promulgated or modified in accordance with the federal Occupational Safety and Health Act of 1970 and which are in effect on the effective date of this Act shall be and are hereby made rules of the Department unless the Director promulgates an alternate standard that is at least as effective in providing safe and healthful employment and places of employment as a federal standard. Before developing and adopting an alternate standard or modifying or revoking an existing standard, the Director must consider factual information that includes:

(1) Expert technical knowledge.

(2) Input from interested persons, including employers, employees, recognized standards-producing organizations, and the public.

(b) All federal occupational safety and health standards which the United States Secretary of Labor promulgates or modifies in accordance with the federal Occupational Safety and Health Act of 1970 on or after the effective date of this Act, unless revoked by the Secretary of Labor, shall become rules of the Department within 6 months after their federal promulgation date, unless there has been in effect in this State at the time of the promulgation or modification of the federal standard an alternate State standard that is at least as effective in providing safe and healthful employment and places of employment as a federal standard. The alternate State standard, if not currently contained in the Department's rules, shall not become effective, however, unless the Department, within 45 days after the federal promulgation date, files with the office of the Secretary of State in Springfield, Illinois, a certified copy of the rule as provided in the Illinois Administrative Procedure Act.

(Source: P.A. 98-874, eff. 1-1-15.)

(820 ILCS 219/60)

Sec. 60. Employers' records.

(a) The Director shall adopt rules requiring public employers to maintain accurate records of, and to make reports on, work-related deaths, injuries, and illnesses, other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job. The rules shall specifically include all of the reporting provisions of Section 6 of the Workers' Compensation Act and Section 6 of the Workers' Occupational Diseases Act. The records shall be available to any State agency requiring such information.

(b) The Director shall adopt rules requiring public employers to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under this Act. The rules shall provide employees or their authorized representative with an opportunity to observe the monitoring or measuring, and to have access to the records of the monitoring or measuring. The rules shall provide appropriate means by which each employee or former employee may have access to such records as will indicate his or her exposure to toxic materials or harmful physical agents.

(c) A public employer shall promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels which exceed those prescribed by an occupational safety and health standard and shall inform the employee who is being thus exposed of the action being taken by the employer to correct such exposure.

(Source: P.A. 98-874, eff. 1-1-15.)

(820 ILCS 219/65)

Sec. 65. Periodic inspection of workplaces.

(a) The Director shall enforce the occupational safety and health standards and rules promulgated under this Act and any occupational health and safety regulations relating to inspection of places of employment, and shall visit and inspect, as often as practicable, the places of employment covered by this Act.

(b) The Director or his or her authorized representative, upon presenting appropriate credentials to a public employer's agent in charge, has the right to enter and inspect all places of employment covered by this Act as follows:

(1) An inspector may enter without delay and at reasonable times any establishment, construction site, or other area, workplace, or environment where work is performed by an employee of a public employer in order to enforce the occupational safety and health standards adopted under this Act.

(2) If a public employer refuses entry to an inspector upon being presented with proper credentials or allows entry but then refuses to permit or hinders the inspection in any way, the inspector shall leave the premises and immediately report the refusal to authorized management within the Division. Authorized management shall notify the Director to initiate the compulsory legal process to obtain entry or obtain a warrant for entry, or both.

(3) An inspector may inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any workplace described in paragraph (1) and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately the employer or any agent or employee of the employer.

(4) The owner, operator, manager, or lessee of any workplace covered by this Act, and his or her agent or employee, and any employer affected by this Act shall, when requested by the Division of Occupational Safety and Health or any duly authorized agent of that Division: (i) furnish any information in his or her possession or under his or her control which the Department is authorized to require, (ii) answer truthfully all questions required to be put to him or her, and (iii) cooperate in the making of a proper inspection.

(c) In making his or her inspection and investigations under this Act, the Director of Labor has the power to require the attendance and testimony of witnesses and the production of evidence under oath.

(Source: P.A. 98-874, eff. 1-1-15; 99-336, eff. 8-10-15.)

(820 ILCS 219/80)

Sec. 80. Violation of Act or standard; citation.

(a) Upon inspection or investigation of a workplace, if the Director or his or her authorized representative believes that a public employer has violated a requirement of this Act or a standard, rule, or regulation promulgated under this Act, he or she shall with reasonable promptness issue a citation to the employer. A citation shall: (i) be in writing, (ii) describe with particularity the nature of the violation and include a reference to the provision of the Act, standard, rule, or regulation alleged to have been violated, and (iii) fix a reasonable time for the abatement of the violation.

(b) Each citation issued under this Section, or a copy or copies thereof, shall be prominently posted at or near the place at which the violation occurred as prescribed in rules adopted by the Director.

(c) A citation shall be served on the employer or the employer's agent by delivering a copy to the person upon whom the service is to be had, or by leaving a copy at his or her usual place of business or abode, or by sending a copy by certified mail to his or her place of business, or by sending a copy by email to an email address previously designated by the employer for purposes of receiving notice under this Act.

(d) A citation may not be issued under this Section after the expiration of 6 months following the occurrence of any violation.

(Source: P.A. 98-874, eff. 1-1-15.)

(820 ILCS 219/85)

Sec. 85. Civil penalties.

(a) After an inspection of a workplace under this Act, if the Director issues a citation, he or she shall, within 5 days after issuing the citation, notify the employer by certified mail, or by email to an email address previously designated by the employer for purposes of receiving notice under this Act, of any civil penalty proposed to be assessed for the violation set forth in the citation.

(b) If the Director has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction, the Director shall notify the employer by certified mail, or by email to an email address previously designated by the employer for purposes of receiving notice under this Act, of that failure and of the civil penalty proposed to be assessed for that failure.

(c) Civil penalties authorized under this Section are as follows:

(1) A public employer that repeatedly violates this Act, the Safety Inspection and Education Act, or the Health and Safety Act, or any combination of those Acts, or any standard, rule, regulation, or order under any of those Acts, may be assessed a civil penalty of not more than $10,000 per violation.

(2) A public employer that intentionally violates this Act, the Safety Inspection and Education Act, or the Health and Safety Act, or any standard, rule, regulation, or order under any of those Acts, or who demonstrates plain indifference to any provision of any of those Acts or any such standard, rule, regulation, or order, may be assessed a civil penalty of not more than $10,000 per violation.

(3) A public employer that has received a citation for a serious violation of this Act, the Safety Inspection and Education Act, or the Health and Safety Act, or any standard, rule, regulation, or order under any of those Acts, may be assessed a civil penalty up to $1,000 for each such violation.

(4) A public employer that has received a citation for a violation of this Act, the Safety Inspection and Education Act, or the Health and Safety Act, or any standard, rule, regulation, or order under any of those Acts, which is not a serious violation, may be assessed a civil penalty of up to $1,000 for each such violation.

(5) A public employer that violates a posting requirement is subject to the following citations and proposed penalty structure:

(A) Job Safety and Health Poster: an other than serious citation and a proposed penalty of $1,000.

(B) Annual Summary of Work-Related Injuries and Illnesses (OSHA Form 300A): an other than serious citation and a proposed penalty of $1,000, even if there are no recordable injuries or illnesses.

(C) Citation: an other than serious citation and a proposed penalty of $1,000.

(6) A public employer that fails to correct a violation for which a citation has been issued within the time period permitted may be assessed a civil penalty of up to $1,000 for each day the violation continues.

(d) For purposes of this Section, a "serious violation" shall be deemed to exist in a workplace if there is a substantial probability that death or serious physical harm could result from (i) a condition which exists or (ii) one or more practices, means, methods, operations, or processes which have been adopted or are in use in the workplace, unless the employer did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation.

(e) The Director may assess civil penalties as provided in this Section, giving due consideration to the appropriateness of the penalty. A penalty may be reduced by the Director or the Director's authorized representative based on the public employer's good faith, size of business, and history of previous violations.

(f) The Attorney General may bring an action in the circuit court to enforce the collection of any civil penalty assessed under this Act.

(g) All civil penalties collected under this Act shall be deposited into the General Revenue Fund of the State of Illinois.

(Source: P.A. 98-874, eff. 1-1-15.)

(820 ILCS 219/90)

Sec. 90. Informal review.

(a) A public employer may submit in writing data relating to the abatement of a hazard to be considered by an authorized representative of the Director. The authorized representative shall notify the interested parties if such data will be used to modify an abatement order.

(b) Within 15 business working days after receiving a citation, proposed assessment of a civil penalty, or notice of failure to correct a violation, a public employer or the employer's agent may request that an authorized representative of the Director review abatement dates, reclassify violations (such as willful to serious, serious to other than serious), or modify or withdraw a penalty, a citation, or a citation item, or any combination of those, if the employer presents evidence during the informal conference which convinces the authorized representative that the changes are justified.

(Source: P.A. 98-874, eff. 1-1-15.)

(820 ILCS 219/100)

Sec. 100. Hearing.

(a) If a public employer or the employer's representative notifies the Director that the employer intends to contest a citation and notice of penalty or if, within 15 business working days after the issuance of the citation, an employee or representative of employees files a notice with the Director alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the Director shall afford an opportunity for a hearing before an Administrative Law Judge designated by the Director.

(b) At the hearing, the employer or employee shall state his or her objections to the citation and provide evidence why the citation should not stand as issued. The Director or his or her representative shall be given the opportunity to state his or her reasons for issuing the citation. Affected employees shall be provided an opportunity to participate as parties to hearings under the rules of procedure prescribed by the Director (56 Ill. Admin. Code, Part 120).

(c) The Director, or the Administrative Law Judge on behalf of the Director, has the power to do the following:

(1) Issue subpoenas for and compel the attendance of witnesses.

(2) Hear testimony and receive evidence.

(3) Order testimony of a witness residing within or without this State to be taken by deposition in the manner prescribed by law for depositions in civil cases in the circuit court in any proceeding pending before him or her at any stage of such proceeding.

(d) Subpoenas and commissions to take testimony shall be issued by under seal of the Director. Service of subpoenas may be made by a sheriff or any other person.

(e) The circuit court for the county where any hearing is pending may compel the attendance of witnesses, the production of pertinent books, papers, records, or documents, and the giving of testimony before the Director or an Administrative Law Judge by an attachment proceeding, as for contempt, in the same manner as the production of evidence may be compelled before the court.

(f) The Administrative Law Judge on behalf of the Director, after considering the evidence presented at the formal hearing, in accordance with the Director's rules, shall enter a final decision and order within a reasonable time affirming, modifying, or vacating the citation or proposed assessment of a civil penalty, or directing other appropriate relief.

(Source: P.A. 98-874, eff. 1-1-15.)

(820 ILCS 219/110)

Sec. 110. Discrimination against employee prohibited.

(a) A person may not discharge or in any way discriminate against an employee because the employee has: (i) filed a complaint or instituted or caused to be instituted any proceeding under this Act, (ii) testified or is about to testify in any such proceeding, or (iii) exercised, on his or her own behalf or on behalf of another person, any right afforded by this Act, including discussing health or safety concerns with a co-worker or authorized employee representative.

(b) An employee who believes that he or she has been discharged or otherwise discriminated against by an employer in violation of this Section may, within 30 calendar days after the violation occurs, file a complaint with the Director alleging the discrimination.

(c) Upon receipt of the complaint, the Director shall cause an investigation to be made as the Director deems appropriate. After the investigation, if the Director determines that the employer has violated this Section, the Director shall bring an action in the circuit court for appropriate relief, including rehiring or reinstatement of the employee to his or her former position with back pay, after taking into account any interim earnings of the employee. In such matters the Director shall be represented by the Attorney General.

(Source: P.A. 98-874, eff. 1-1-15.)