Occupational safety and health for public sector workers

454 CMR: DEPARTMENT OF LABOR STANDARDS

454 CMR 25.00: OCCUPATIONAL SAFETY AND HEALTH FOR PUBLIC SECTOR WORKERS

Section

25.01: Purpose and Scope 25.02: Applicable Standards 25.03: Inspections 25.04: Posting of Notice 25.05: Compliance 25.06: Recordkeeping and Reporting Requirements 25.07: Retaliation 25.08: Imminent Danger Procedures 25.09: Severability

25.01: Purpose and Scope

(1) Purpose. The purpose of .00 is to provide public-sector employees safe and healthful work environments free from recognized hazards that may cause serious injury, physical harm, or death on par with the level of protection provided under the Occupational Safety and Health Act of 1970.

(2) Scope. .00 shall apply to all “public employers” and “public employees” as defined in M.G.L. c. 149, § 6½.

25.02: Applicable Standards

The standards set forth under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq., including the General Duty Clause under 29 U.S.C. § 654, which provides, “Each employer (a) shall furnish to each of its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees; (b) shall comply with occupational safety and health standards promulgated under this act. Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this act which are applicable to the employee's own actions and conduct.” Additionally, except as provided otherwise in .02 the versions of 29 CFR Parts 1903, 1904, 1905, 1908, 1910, 1915, 1917, 1918, 1926, 1928, and 1977 in effect on July 30, 2024 shall apply to all places of employment covered by .00, and employers covered by .00 shall comply with them under the authority of the Department of Labor Standards. For purposes of .00, all references to “Secretary” and “Assistant Secretary” in the aforementioned CFR parts shall mean the Director of the Massachusetts Department of Labor Standards and all references to the Occupational Safety and Health Administration (OSHA) or the United States Department of Labor shall mean the Massachusetts Department of Labor Standards, 100 Cambridge Street, Suite 500, Boston, MA 02114. All references to and requirements of federal agencies or entities in the aforementioned CFR parts shall mean the applicable Massachusetts counterpart if one exists. The Department of Labor Standards will adopt any necessary future amendments to the Occupational Safety and Health Act and the aforementioned CFR parts via the procedures outlined in 950 CMR 20.00: Preparing and Filing Regulations.

25.03: Inspections

(1) The Department of Labor Standards shall have the authority set forth in M.G.L. c. 149, §§ 6, 6½, 10 and 17 and 29 CFR Part 1903 to conduct inspections of all places of employment covered by M.G.L. c. 149, § 6½ including, but not limited to, the authority to: (a) enter without delay and at reasonable times any place of employment where work is performed by an employee or where there is reason to believe that a violation of safety or health standard exists or where there is reason to believe the employer is not furnishing to each employee a place of employment which is free from recognized hazards, per the General Duty Clause and examine the methods of protection from accident, the means of escape from fire, the sanitary provisions, the lighting and means of ventilation, and determine what suitable safety devices or other reasonable means or requirements for the prevention of accidents or industrial or occupational diseases shall be adopted or followed, and conduct such investigations as the Department may deem necessary;

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454 CMR: DEPARTMENT OF LABOR STANDARDS

25.03: continued

(b) inspect and investigate during the employer's regular working hours and at other reasonable times any place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein; and (c) question privately any employer, owner, manager, agent or employee, and review all records required by .06 or .02 including, but not limited to, records regarding: 1. Any claimed safety or health violation; 2. Work-related deaths, injuries and illnesses other than minor injuries which require only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or of motion, or transfer to another job; 3. Any potential safety or health hazard at any place of employment; 4. Employee exposure to potentially toxic materials or other harmful physical agents which .06 requires to be monitored or measured; 5. Any other employer activities relating to 29 U.S.C. § 651, et seq.; 6. Training records including, but not limited to, certificates, letters of completion and other personnel records, as well as agency records of training, such as rosters, agendas, and curriculum; and 7. Written programs, including required safety programs as stipulated by the applicable standards referenced in .02, standard operating procedures, policies, and other written programs.

(2) When an employer requires security clearances for entry into a particular area, the employer shall provide appropriate clearances to the Department. In the event the employer does not control the security clearances, the employer shall make reasonable effort to obtain access for the Department.

(3) The inspection shall be conducted in such a manner as to preclude unreasonable disruption of the employer's operations.

(4) Any person who gives advance notice of any inspection to be conducted pursuant to .00 without authority from the Director shall, upon conviction, be punished per M.G.L. c. 268A, §§ 23 and 26.

(5) Employees or employee representatives shall have the right to report unsafe and unhealthful working conditions to the employer and/or to the Department in accordance with 29 CFR Part 1903.

(6) The Department shall direct inspections and questioning of persons. A representative of the employer and an employee-authorized representative shall be given an opportunity to accompany the Department during the physical inspection of any workplace, if it does not interfere with the conduct of the inspection or present a safety or health hazard as determined in the sole discretion of the Department in accordance with 29 CFR Part 1903.

(7) The Department shall have the right to compel witnesses and evidence, and to issue fines and stop work orders for violations of its safety regulations.

25.04: Posting of Notice

(1) (a) Each employer shall post and keep posted a notice or notices furnished by the Department, informing employees of the protections and obligations provided by 454 CMR 25.00 and for assistance and information, including copies of 29 U.S.C. § 651, et seq. and of specific safety and health standards. Such notice or notices shall be posted by the employer in each worksite and facility in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to ensure that such notices are not altered, defaced, or covered by other material. (b) Reproductions or facsimiles of such federal or state posters shall constitute compliance with the posting.

(2) Any employer failing to comply with the provisions of .04 shall be subject to citation and penalty.

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454 CMR: DEPARTMENT OF LABOR STANDARDS

25.05: Compliance

(1) In exercising the authority set forth in .00, the Department may take action and shall follow the procedures set forth in 454 CMR 29.00: Civil Administrative Penalties.

(2) If the Department determines that an employer has violated a provision of .00, the Department shall, within 180 days of the initiation of the inspection opening conference, issue to the employer a written Order to Correct, which shall include: (a) A description of the nature of each violation, including a reference to the provision of the section, standard, regulation, or order alleged to have been violated; (b) the corrective action(s) to abate the violations; and (c) an abatement date for each violation.

(3) The Department shall provide written notification of any Order to Correct to the appropriate governing official, public administrator, agency head, and/or personnel director.

(4) An employer may contest or appeal any Order or other ruling of the Department pursuant to M.G.L. c. 149, § 9. For purposes of any such appeal, references to "associate commissioners" in M.G.L. c. 149, § 9 shall mean the Board of Occupational Safety and Health.

(5) The Attorney General may bring a civil action for declaratory or injunctive relief to enforce any order of the Department or the Attorney General.

(6) The Director shall have the authority to make reasonable rules, requirements, or orders necessary to prevent accidents and injuries to ensure the safe working environments consistent with .00. The Director shall make all rules, requirements, and orders publicly known to affected employees and employers. The Director shall post all rules, requirements, and orders to the Department's website.

(7) Variances. If granted, a variance permits a public sector employer or class of employers to depart from the requirements of .00 under specified conditions. (a) Any employer may apply to the Director for an order granting a variance from a standard promulgated under .00. Affected employees shall be given notice of each such application and an opportunity to participate in any hearing. 1. The Director shall issue an order granting a temporary variance if the Director determines on the record, after a hearing and, where appropriate, an inspection, that the proponent of a variance has demonstrated that the proponent is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard, or because necessary construction or alteration of facilities cannot be completed by the effective date; is taking all available steps to safeguard its employees against the hazards covered by the standard; and has an effective program for coming into compliance with the standard as quickly as practicable. Except as otherwise provided in .05(7), the Department shall follow the applicable provisions of 29 CFR 1905, including 29 CFR 1905.10, where applicable to public employers under the authority of the Department. 2. The Director shall issue an order granting a permanent variance if the Director determines on the record, after a hearing and, where appropriate, an inspection, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment which are as safe and healthful as those which would prevail if the employer complied with the standard. Except as otherwise provided in .05(7),, the Department shall follow the applicable provisions of 29 CFR Part 1905, including 29 CFR 1905.11, where applicable to public employers under the authority of the Department. 3. Any variance order issued under .05(7), may be summarily revoked by the Director on the Director's own motion or modified or revoked by the Director upon application by an employer or employee in the manner prescribed for its issuance. Any person aggrieved by an order of the Director may appeal, at any time, pursuant to M.G.L. c. 149, § 9. For purposes of any such appeal, references to “associate commissioners” in M.G.L. c. 149, § 9 shall mean the Board of Occupational Safety and Health.

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454 CMR: DEPARTMENT OF LABOR STANDARDS

25.05: continued

(b) Every final action granting a variance shall be published on the Department's website. Each final action shall specify the alternative to the standard involved which the particular variance permits. The Director shall also make all variances known to affected employees and employers. All variances granted pursuant to .05 shall have only future effect.

25.06: Recordkeeping and Reporting Requirements

(1) All employers shall keep, submit, and make available records concerning occupational injuries, illnesses, deaths, and exposure to toxic materials in compliance with regulations promulgated under 29 U.S.C. § 651, et seq., as set forth in 29 CFR Part 1904 and 29 CFR 1910.1020.

(2) Per 29 CFR Part 1904, all employers shall report to the Massachusetts Department of Labor Standards any work-related injuries and illnesses that result in the death of an employee within eight hours of the occurrence, and those that result in amputation, loss of an eye, or in-patient hospitalization within 24 hours. These reports can be made by telephone or electronic submission, in a form prescribed by the Department.

(3) The Commonwealth Human Resources Division shall prescribe the recordkeeping mechanism state agencies shall use to keep such required records under 29 CFR Part 1904.

(4) All employers that have workplaces selected by the Bureau of Labor Statistics as sample units for participation in the annual Bureau of Labor of Statistics' Survey of Occupational Injuries and Illnesses shall comply with the survey's reporting requirements relating to injury and illness data.

25.07: Retaliation

(1) No person shall discharge or in any manner discriminate against any employee because the employee has: (a) filed any complaint under or related to .00; (b) instituted or caused to be instituted any proceeding under or related to .00; (c) testified or intends to testify in any proceeding under or related to .00; or (d) exercised on his or her own behalf or on behalf of others any right afforded by 454 CMR 25.00.

(2) Any employee who believes that he or she has been discriminated against in violation of .07 or 29 U.S.C. § 660 may seek remedy through the Department pursuant to 29 CFR Part 1977 or file a private right of action in accordance with M.G.L. c. 149, § 185.

25.08: Imminent Danger Procedures

The Department will follow the procedures in 29 CFR Part 1903 for cases of imminent danger.

25.09: Severability

If any provision of .00 shall be held inconsistent with the laws of the Commonwealth, or held unconstitutional, either on its face, or as applied, the inconsistency or unconstitutionality shall not affect the remaining provisions.

REGULATORY AUTHORITY

.00: M.G.L. c. 149, §§ 6, 6½, 9, 10 and 17.

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