HF 1242

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to employment; modifying a definition; 
  1.3             extending certain occupational safety and health 
  1.4             requirements to certain independent contractors; 
  1.5             eliminating occupational safety and health exemptions 
  1.6             for technically qualified individuals; requiring 
  1.7             notification for certain construction projects; 
  1.8             modifying the admissibility of evidence obtained 
  1.9             during an occupational safety and health inspection; 
  1.10            modifying requirements relating to discrimination; 
  1.11            amending Minnesota Statutes 1994, sections 182.651, 
  1.12            subdivisions 7, 14, and 15; 182.6521; 182.653, 
  1.13            subdivisions 4b 4c, 4f, and by adding a subdivision; 
  1.14            182.659, subdivision 1; and 182.669, subdivision 1; 
  1.15            repealing Minnesota Statutes 1994, section 182.651, 
  1.16            subdivision 16.  
  1.17  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.18     Section 1.  Minnesota Statutes 1994, section 182.651, 
  1.19  subdivision 7, is amended to read: 
  1.20     Subd. 7.  "Employer" means a person who employs one or more 
  1.21  employees and includes any person who has the power to hire, 
  1.22  fire, or transfer, or who acts in the interest of, or as a 
  1.23  representative of, an employer and includes a corporation, 
  1.24  partnership, association, group of persons, and the state and 
  1.25  all of its political subdivisions.  The commissioner shall apply 
  1.26  a multifactor analysis when determining whether an employment 
  1.27  relationship has been established.  The factors to be considered 
  1.28  by the commissioner include, but are not limited to, the 
  1.29  following factors.  
  1.30     (a) Does the alleged employer control the means and manner 
  1.31  of the performance of the work?  
  2.1      (b) Does the alleged employer have the power to hire, fire, 
  2.2   or modify the employment conditions of the worker?  
  2.3      (c) Does the alleged employer furnish to the worker 
  2.4   materials and tools necessary to perform the work?  
  2.5      (d) Does the alleged employer pay the worker's wages or 
  2.6   otherwise compensate the worker?  
  2.7      (e) How are the worker's wages or other compensation 
  2.8   established?  
  2.9      (f) Does the worker's ability to increase income depend on 
  2.10  efficiency rather than initiative, judgment, and foresight?  
  2.11     (g) Does the worker identify the alleged employer as the 
  2.12  employer?  
  2.13     The commissioner shall give factor (a) the greatest weight. 
  2.14     Sec. 2.  Minnesota Statutes 1994, section 182.651, 
  2.15  subdivision 14, is amended to read: 
  2.16     Subd. 14.  "Hazardous substance" means a chemical or 
  2.17  substance, or mixture of chemicals and substances, which:  
  2.18     (a) is regulated by the federal Occupational Safety and 
  2.19  Health Administration under the Code of Federal Regulations, 
  2.20  title 29, part 1910, subpart Z; or 
  2.21     (b) is either toxic or highly toxic; an irritant; 
  2.22  corrosive; a strong oxidizer; a strong sensitizer; combustible; 
  2.23  either flammable or extremely flammable; dangerously reactive; 
  2.24  pyrophoric; pressure-generating; compressed gas; carcinogen; 
  2.25  teratogen; mutagen; reproductive toxic agent; or that otherwise, 
  2.26  according to generally accepted documented medical or scientific 
  2.27  evidence, may cause substantial acute or chronic personal injury 
  2.28  or illness during or as a direct result of any customary or 
  2.29  reasonably foreseeable accidental or intentional exposure to the 
  2.30  chemical or substance; or 
  2.31     (c) is determined by the commissioner as a part of the 
  2.32  standard for the chemical or substance or mixture of chemicals 
  2.33  and substances to present a significant risk to worker health 
  2.34  and safety or imminent danger of death or serious physical harm 
  2.35  to an employee as a result of foreseeable use, handling, 
  2.36  accidental spill, exposure, or contamination.  
  3.1      In determining whether a chemical or substance is hazardous 
  3.2   under clause (b) or clause (c), the commissioner shall, if 
  3.3   appropriate, apply the criteria contained in the American 
  3.4   National Standard Institute's American National Standard for the 
  3.5   Precautionary Labeling of Hazardous Industrial Chemicals, 
  3.6   Z129.1-1982, or any later revision of that standard.  In 
  3.7   addition the commissioner may consider the information contained 
  3.8   in appendices which do not appear in the standard and any other 
  3.9   available scientific evidence which substantially indicates a 
  3.10  chemical or substance or mixture of chemicals and substances is 
  3.11  hazardous.  
  3.12     Hazardous substance does not include a substance being 
  3.13  developed or handled by a technically qualified individual in a 
  3.14  research, medical research, medical diagnostic or medical 
  3.15  educational laboratory or in a health care facility or in a 
  3.16  clinic associated with the laboratory or health care facility, 
  3.17  or in a pharmacy registered and licensed under chapter 151.  
  3.18  This exemption applies only to technically qualified individuals 
  3.19  and not to persons working in the same work area who are not 
  3.20  technically qualified individuals. 
  3.21     Sec. 3.  Minnesota Statutes 1994, section 182.651, 
  3.22  subdivision 15, is amended to read: 
  3.23     Subd. 15.  "Harmful physical agent" means a physical agent 
  3.24  determined by the commissioner as a part of the standard for 
  3.25  that agent to present a significant risk to worker health or 
  3.26  safety or imminent danger of death or serious physical harm to 
  3.27  an employee.  This definition includes but is not limited to 
  3.28  radiation, whether ionizing or nonionizing.  
  3.29     Harmful physical agent does not include an agent being 
  3.30  developed or utilized by a technically qualified individual in a 
  3.31  research, medical research, medical diagnostic or medical 
  3.32  educational laboratory or in a health care facility or in a 
  3.33  clinic associated with the laboratory or health care facility, 
  3.34  or in a pharmacy registered and licensed under chapter 151.  The 
  3.35  exemption in this clause does not include a physical agent 
  3.36  utilized in a laboratory that primarily provides a quality 
  4.1   control analysis for a manufacturing process.  This exemption 
  4.2   applies only to technically qualified individuals and not to 
  4.3   persons working in the same work area who are not technically 
  4.4   qualified individuals. 
  4.5      Sec. 4.  Minnesota Statutes 1994, section 182.6521, is 
  4.6   amended to read: 
  4.7      182.6521 [INDEPENDENT CONTRACTORS.] 
  4.8      Subdivision 1.  [BUILDING CONSTRUCTION.] An independent 
  4.9   contractor doing building construction or improvements in the 
  4.10  public or private sector must comply with the occupational 
  4.11  safety and health standards that apply under this chapter to an 
  4.12  employer and its employees.  This section applies to an 
  4.13  independent contractor however organized including, without 
  4.14  limitation, those organized as a partnership, sole 
  4.15  proprietorship, or corporation. 
  4.16     Subd. 2.  [GENERAL INDUSTRY.] An independent contractor 
  4.17  however organized including, without limitation, those organized 
  4.18  as a partnership, sole proprietorship, or corporation shall 
  4.19  comply with and be subject to the provisions of this chapter and 
  4.20  any standard, rule, or order adopted under the authority of the 
  4.21  commissioner, as would an employer.  The commissioner shall 
  4.22  issue a citation and notification of penalty to an independent 
  4.23  contractor for violation of the requirements of this chapter and 
  4.24  any standard, rule, or order adopted under the authority of the 
  4.25  commissioner if the independent contractor created or had 
  4.26  control over a violation to which other workers are exposed. 
  4.27     Sec. 5.  Minnesota Statutes 1994, section 182.653, 
  4.28  subdivision 4b, is amended to read: 
  4.29     Subd. 4b.  Prior to an employee's initial assignment to a 
  4.30  workplace where the employee may be routinely exposed to a 
  4.31  hazardous substance or harmful physical agent, the employer 
  4.32  shall provide training concerning the hazardous substance or 
  4.33  harmful physical agent.  The employer shall provide additional 
  4.34  instruction whenever the employee may be routinely exposed to 
  4.35  any additional hazardous substance or harmful physical agent. 
  4.36  The term "routinely exposed" includes the exposure of an 
  5.1   employee to a hazardous substance when assigned to work in an 
  5.2   area where a hazardous substance has been spilled.  
  5.3      For each hazardous substance to which the employee may be 
  5.4   routinely exposed, the employer's training program shall include:
  5.5      (a) the name or names of the substance including any 
  5.6   generic or chemical name, trade name, and commonly used name; 
  5.7      (b) the level, if any and if known, at which exposure to 
  5.8   the substance has been restricted according to standards adopted 
  5.9   by the commissioner, or, if no standard has been adopted, 
  5.10  according to guidelines established by competent professional 
  5.11  groups including but not limited to the American Industrial 
  5.12  Hygiene Association, the American Conference of Governmental 
  5.13  Industrial Hygienists, the Center for Disease Control, the 
  5.14  Bureau of Radiological Health, and the American National 
  5.15  Standards Institute; 
  5.16     (c) the primary routes of entry and the known acute and 
  5.17  chronic effects of exposure at hazardous levels; 
  5.18     (d) the known symptoms of the effects; 
  5.19     (e) any potential for flammability, explosion, or 
  5.20  reactivity of the substance; 
  5.21     (f) appropriate emergency treatment; 
  5.22     (g) the known proper conditions for safe use of and 
  5.23  exposure to the substance; 
  5.24     (h) procedures for cleanup of leaks and spills; 
  5.25     (i) the name, phone number and address of the manufacturer 
  5.26  of the hazardous substance; and 
  5.27     (j) a written copy of all of the above information which 
  5.28  shall be readily accessible in the area or areas in which the 
  5.29  hazardous substance is used or handled.  
  5.30     Employees who have been routinely exposed to a hazardous 
  5.31  substance prior to the effective date of Laws 1983, chapter 316 
  5.32  and who continue to be routinely exposed to that hazardous 
  5.33  substance after the effective date of Laws 1983, chapter 316, 
  5.34  shall be trained with respect to that hazardous substance within 
  5.35  six months of the effective date of Laws 1983, chapter 316.  
  5.36     Training to update the information required to be provided 
  6.1   under this subdivision shall be repeated at intervals no greater 
  6.2   than one year.  
  6.3      Every employer shall maintain current information for 
  6.4   training under this subdivision or for information requests by 
  6.5   employees under section 182.654, subdivision 10.  
  6.6      This subdivision does not apply to any employer engaged in 
  6.7   a farming operation.  
  6.8      This subdivision does not apply to any nonpublic school or 
  6.9   any school district before January 1, 1985.  
  6.10     Any technically qualified individual shall be notified of 
  6.11  and may elect to participate in any training or update programs 
  6.12  required to be provided under this subdivision to employees who 
  6.13  are not technically qualified individuals.  The employer shall 
  6.14  make a reasonable attempt to allow technically qualified 
  6.15  individuals to attend training or update programs which may be 
  6.16  held during the employee's scheduled work hours. 
  6.17     Sec. 6.  Minnesota Statutes 1994, section 182.653, 
  6.18  subdivision 4c, is amended to read: 
  6.19     Subd. 4c.  For each harmful physical agent to which an 
  6.20  employee may be routinely exposed, the employer's training 
  6.21  program shall include the information required by the standard 
  6.22  for that physical agent as determined by the commissioner, 
  6.23  including but not limited to:  
  6.24     (a) the name or names of the physical agent including any 
  6.25  commonly used synonym; 
  6.26     (b) the level, if any and if known, at which exposure to 
  6.27  the physical agent has been restricted according to standards 
  6.28  adopted by the commissioner, or, if no standard has been 
  6.29  adopted, according to guidelines established by competent 
  6.30  professional groups including but not limited to the American 
  6.31  Conference of Governmental Industrial Hygienists, the Center for 
  6.32  Disease Control, the Bureau of Radiological Health, and the 
  6.33  American National Standards Institute; 
  6.34     (c) the known acute and chronic effects of exposure at 
  6.35  hazardous levels; 
  6.36     (d) the known symptoms of the effects; 
  7.1      (e) appropriate emergency treatment; 
  7.2      (f) the known proper conditions for safe use of and 
  7.3   exposure to the physical agent; 
  7.4      (g) the name, phone number and address, if appropriate, of 
  7.5   the manufacturer of the equipment which generates the harmful 
  7.6   physical agent; and 
  7.7      (h) a written copy of all of the above information which 
  7.8   shall be readily accessible in the area or areas in which the 
  7.9   harmful physical agent is present and where the employee may be 
  7.10  exposed to the agent through use, handling or otherwise.  
  7.11     Employees who have been routinely exposed to a harmful 
  7.12  physical agent prior to the effective date of Laws 1983, chapter 
  7.13  316 and who continue to be routinely exposed to that harmful 
  7.14  physical agent after the effective date of Laws 1983, chapter 
  7.15  316, shall be trained with respect to that harmful physical 
  7.16  agent within six months of the effective date of Laws 1983, 
  7.17  chapter 316.  
  7.18     Training to update the information required to be provided 
  7.19  under this subdivision shall be repeated at intervals no greater 
  7.20  than one year.  
  7.21     Every employer shall maintain current information for 
  7.22  training under this subdivision or for information requests by 
  7.23  employees under section 182.654, subdivision 10.  
  7.24     This subdivision does not apply to any employer engaged in 
  7.25  a farming operation.  
  7.26     Any technically qualified individual shall be notified of 
  7.27  and may elect to participate in any training or update programs 
  7.28  required to be provided under this subdivision to employees who 
  7.29  are not technically qualified individuals.  The employer shall 
  7.30  make a reasonable attempt to allow technically qualified 
  7.31  individuals to attend training or update programs which may be 
  7.32  held during the employee's scheduled work hours. 
  7.33     Sec. 7.  Minnesota Statutes 1994, section 182.653, 
  7.34  subdivision 4f, is amended to read: 
  7.35     Subd. 4f.  Each employer shall provide training according 
  7.36  to a program developed by the commissioner by rule with approval 
  8.1   of the commissioner of health to its employees routinely exposed 
  8.2   to an infectious agent.  The training shall include the 
  8.3   information required by the rule for that agent as developed by 
  8.4   the commissioner and shall include, if known, names of 
  8.5   infectious agents to which the employee is routinely exposed, 
  8.6   proper techniques for the employee to avoid self-contamination, 
  8.7   and symptoms and effects of contamination.  Training shall be 
  8.8   provided upon the initial assignment of the employee to a job 
  8.9   where that person will be routinely exposed to an infectious 
  8.10  agent.  Existing in-service, hospital licensure or certification 
  8.11  programs which the commissioner determines substantially comply 
  8.12  with the rules adopted pursuant to this subdivision may be 
  8.13  certified by the commissioner to satisfy all or a part of the 
  8.14  rules.  
  8.15     Infectious agent does not include an agent being developed 
  8.16  or regularly utilized by a technically qualified individual in a 
  8.17  research, medical research, medical diagnostic, or medical 
  8.18  educational laboratory or in a health care facility or in a 
  8.19  clinic associated with a laboratory or health care facility, or 
  8.20  in a pharmacy registered and licensed under chapter 151. 
  8.21     Training to update the information required to be provided 
  8.22  under this subdivision shall be repeated at intervals no greater 
  8.23  than one year.  
  8.24     Any technically qualified individual shall be notified of 
  8.25  and may elect to participate in any training or update programs 
  8.26  required to be provided under this subdivision to employees who 
  8.27  are not technically qualified individuals.  The employer shall 
  8.28  make a reasonable attempt to allow technically qualified 
  8.29  individuals to attend training or update programs which may be 
  8.30  held during the employee's scheduled work hours. 
  8.31     Sec. 8.  Minnesota Statutes 1994, section 182.653, is 
  8.32  amended by adding a subdivision to read: 
  8.33     Subd. 11.  [CONSTRUCTION PROJECT NOTIFICATION.] An employer 
  8.34  must notify the Minnesota occupational safety and health 
  8.35  division before beginning a construction project for trenching, 
  8.36  asbestos work, demolition work, bridge work, projects over 
  9.1   $2,000,000 in total construction, buildings of three or more 
  9.2   floors or 30 or more feet high, buildings of 50,000 or more 
  9.3   square feet, or structures of 60 or more feet high. 
  9.4      Sec. 9.  Minnesota Statutes 1994, section 182.659, 
  9.5   subdivision 1, is amended to read: 
  9.6      Subdivision 1.  In order to carry out the purposes of this 
  9.7   chapter, the commissioner, upon presenting appropriate 
  9.8   credentials to the owner, operator, or agent in charge, is 
  9.9   authorized to enter without delay and at reasonable times any 
  9.10  place of employment; and to inspect and investigate during 
  9.11  regular working hours and at other reasonable times, and within 
  9.12  reasonable limits and in a reasonable manner, any such place of 
  9.13  employment and all pertinent conditions, structures, machines, 
  9.14  apparatus, devices, equipment, and materials therein, and to 
  9.15  question privately any such employer, owner, operator, agent or 
  9.16  employee.  Any observations made or other evidence obtained by 
  9.17  the commissioner before the presentment of credentials shall be 
  9.18  admissible in any proceeding under this chapter if the 
  9.19  presentment of credentials was made within a reasonable time 
  9.20  after initial entry at the place of employment. 
  9.21     Sec. 10.  Minnesota Statutes 1994, section 182.669, 
  9.22  subdivision 1, is amended to read: 
  9.23     Subdivision 1.  Any employee believed to have been 
  9.24  discharged or otherwise discriminated against by any person 
  9.25  because such the employee has exercised any right authorized 
  9.26  under the provisions of sections 182.65 to 182.674, may, within 
  9.27  30 days after such the alleged discrimination occurs, file a 
  9.28  complaint with the commissioner alleging the discriminatory 
  9.29  act.  Upon receipt of such the complaint, the commissioner shall 
  9.30  cause such an investigation to be made as the commissioner deems 
  9.31  appropriate.  If upon such the investigation the commissioner 
  9.32  determines that a discriminatory act was committed against an 
  9.33  employee, the commissioner shall refer the matter to the office 
  9.34  of administrative hearings for a hearing before an 
  9.35  administrative law judge pursuant to the provisions of chapter 
  9.36  14.  Communications between attorneys representing the 
 10.1   commissioner and discrimination complainants are privileged as 
 10.2   would be communications between an attorney and a client.  For 
 10.3   purposes of this section, the commissioner shall file with the 
 10.4   administrative law judge and serve upon the respondent, by 
 10.5   registered or certified mail, a complaint and written notice of 
 10.6   hearing.  The respondent shall file with the administrative law 
 10.7   judge and serve upon the commissioner, by registered or 
 10.8   certified mail, an answer within 20 days after service of the 
 10.9   complaint.  In all cases where the administrative law judge 
 10.10  finds that an employee has been discharged or otherwise 
 10.11  discriminated against by any person because the employee has 
 10.12  exercised any right authorized under sections 182.65 to 182.674, 
 10.13  the administrative law judge may shall order payment to the 
 10.14  employee of back pay and compensatory damages in an amount up to 
 10.15  three times the actual damages sustained.  The administrative 
 10.16  law judge may also order rehiring of the employee; reinstatement 
 10.17  of the employee's former position, fringe benefits, and 
 10.18  seniority rights; and other appropriate relief including future 
 10.19  wage and benefit losses, damages for mental anguish or 
 10.20  suffering, punitive damages, and injunctive relief.  In 
 10.21  addition, the administrative law judge may shall order payment 
 10.22  to the commissioner or to the employee of costs, disbursements, 
 10.23  witness fees, and attorney fees.  Interest shall accrue on, and 
 10.24  be added to, the unpaid balance of an administrative law judge's 
 10.25  order from the date the order is signed by the administrative 
 10.26  law judge until it is paid, at the annual rate provided in 
 10.27  section 549.09, subdivision 1, paragraph (c).  An employee may 
 10.28  bring a private action in the district court for relief under 
 10.29  this section. 
 10.30     Sec. 11.  [REPEALER.] 
 10.31     Minnesota Statutes 1994, section 182.651, subdivision 16, 
 10.32  is repealed.