Washington State

House of Representatives

Office of Program Research

BILL

ANALYSIS

Labor & Workforce Development Committee

ESSB 5068

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Brief Summary of Engrossed Substitute Bill

Provides that an appeal of certain Washington Industrial Health and Safety Act violations does not stay abatement dates or requirements.
Allows an employer to file a motion for a stay of abatement with the Board of Industrial Insurance Appeals and sets standards for granting or denying motions

Background:

Under the Washington Industrial Health and Safety Act (WISHA), the Department of Labor and Industries (Department) has authority to adopt safety and health standards governing the conditions of employment in all workplaces.

The Department may inspect and investigate workplaces and must issue a citation if an employer has violated safety or health standards. The citation must fix a reasonable time for the abatement of the violation. If a violation is such that a danger exists from which there is a substantial probability that death or serious physical harm could result to any employee, the Director of the Department (Director) may issue an order immediately restraining any such condition, practice, method, process, or means in the workplace.

If a citation has been issued, the Department must notify the employer within a reasonable amount of time of the penalty to be assessed. Penalties depend on the nature of the violation. An employer has 15 working days to notify the Department that the employer intends to appeal the citation or penalty. If the Department determines that an employer has failed to correct the violation within the time permitted, the Department must notify the employer of the failure to correct and that it has 15 days to notify the Department of an intention to appeal. Citations and penalties not appealed within the stated time frames are final. Appeals are heard by the Board of Industrial Insurance Appeals (Board); however, the Director may reassume jurisdiction for the purposes of a redetermination.

The time period to correct a violation does not begin to run until a final order is entered in any appeal proceedings that were initiated by the employer in good faith and not solely for delay or avoidance of penalties. A notice of appeal stays any citation or notice of the assessment of a penalty pending review by the Board (except of an order of immediate restraint).

Summary of Bill:

An appeal of a serious, willful, repeated serious, or failure to abate a serious violation under the WISHA does not stay abatement dates or requirements, subject to an employer's stay motion.

An employer may request a stay of abatement in a notice of appeal. When the Director reassumes jurisdiction, the redetermination decision must include the stay request. The Department must stay the abatement where the Department cannot determine that the preliminary evidence shows a substantial probability of death or serious physical harm to workers. The Director's decision is final unless the employer renews the request for a stay in an appeal to the Board. The Board must conduct an expedited review and issue a final decision within 45 working days. The Board must grant a stay where there is good cause for a stay unless based on preliminary evidence it is more likely than not that a stay would result in death or serious physical harm to a worker. Affected employees or their representatives must receive opportunity to participate as parties in the expedited review of a motion for a stay of abatement. All abatement requirements are stayed as long as a motion to stay in pending.

If the Board denies a stay, the abatement process must be the same as the process required for abatement upon a final order.

The Board and the Department must develop rules to implement the provisions, and must initiate the rule-making in 2011.