Citations And Policy Regarding Employee Rescue Activities

(1) The Commissioner shall review the inspection report of the compliance officer. If, on the basis of the report the Commissioner believes that the employer has violated a requirement of T.C.A. §50-3-105; any standard, rule, or order promulgated pursuant to T.C.A. §§50-3-201, 50-3-601 or 50-3-605; or of any substantive rule published in Chapters 0800-1-1 through 0800-01-04 and Chapters 0800-01-6 through 0800-01-9, he shall issue to the employer a citation. An appropriate citation shall be issued even though after being informed of an alleged violation by the compliance officer, the employer immediately abates, or initiates steps to abate, such alleged violation. Any citation shall be issued with reasonable promptness and in no event later than six (6) months following the inspection. (2) Any inspection shall describe with particularity the nature of the alleged violation, including a reference to the provision(s) of the Act, standard, rule, or order alleged to have been violated. Any citation shall also fix a reasonable time or times for the abatement of the alleged violation. (3) If a citation is issued for a violation alleged in a request for inspection under Rule 0800-01-04- .12(1) or a notification of violation under Rule 0800-01-04-.12(3), a copy of the citation shall also be sent to the employee or representative of employees who made such request or notification. (4) After an inspection, if the Commissioner determines that a citation is not warranted with respect to a danger or violation alleged to exist in a request for inspection under Rule 0800- 01-04-.12(1) or a notification of violation under Rule 0800-01-04-.12(3), the informal review procedures prescribed in Rule 0800-01-04-.13(1) shall be applicable. After considering all views presented, the Commissioner shall affirm the original determination, order a reinspection or issue a citation if he believes that the inspection discloses a violation. The Commissioner shall furnish the complaining party and the employer with written notification of his determination and the reasons therefore. The determination of the Commissioner shall be final and not subject to review. (5) Every citation shall state that the issuance of a citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest as provided for in the Act or, if contested, unless the citation is affirmed by the TOSHRC. (6) No citation may be issued to an employer because of a rescue activity undertaken by an employee of that employer with respect to an individual in imminent danger unless: (a) Designated/Assigned Employee. 1. Such employee is designated or assigned by the employer to have responsibility to perform or assist in rescue operations; and 2. The employer fails to provide protection of the safety and health of such employee, including failing to provide appropriate training and rescue equipment; or OCCUPATIONAL SAFETY AND HEALTH INSPECTIONS, CHAPTER 0800-01-04 CITATIONS AND PROPOSED PENALTIES (b) Directed Employee. 1. Such employee is directed by the employer to perform rescue activities in the course of carrying out the employee’s job duties; and 2. The employer fails to provide protection of the safety and health of such employee, including failing to provide appropriate training and rescue equipment; or (c) Hazardous workplace. 1. Such employee is employed in a workplace that requires the employee to carry out duties that are directly related to a workplace operation where the likelihood of life-threatening accidents is foreseeable, such as a workplace operation where employees are located in confined spaces or trenches, handle hazardous waste, respond to emergency situations, perform excavations or perform construction over water; and 2. Such employee has not been designated or assigned to perform or assist in rescue operations and voluntarily elects to rescue such an individual; and 3. The employer has failed to instruct employees not designated/assigned or directed to perform or assist in rescue operations of the arrangements for rescue, not to attempt rescue, and of the hazards of attempting rescue without adequate training or equipment. (d) For purposes of this policy, the term “imminent danger” means the existence of any condition or practice that could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated. (7) Petitions for modification of abatement date. (a) An employer may file a petition for modification of abatement date when he has made a good faith effort to comply with the abatement requirements of a citation, but such abatement has not been completed because of factors beyond his reasonable control. (b) A petition for modification of abatement date shall be in writing and shall include the following information: 1. All steps taken by the employer, and the dates of such action, in an effort to achieve compliance during the prescribed abatement period. 2. The specific additional abatement time necessary in order to achieve compliance. 3. The reasons such additional time is necessary, including the unavailability of professional or technical personnel or of materials and equipment, or because necessary construction or alteration of facilities cannot be completed by the original abatement date. 4. All available interim steps being taken to safeguard the employees against the cited hazard during the abatement period. OCCUPATIONAL SAFETY AND HEALTH INSPECTIONS, CHAPTER 0800-01-04 CITATIONS AND PROPOSED PENALTIES 5. A certification that a copy of the petition has been posted and, if appropriate, served on the authorized representative of affected employees, in accordance with item 1. of subparagraph (c) of paragraph (7) of this rule and a certification of the date upon which such posting and service was made. (c) A petition for modification of abatement date shall be filed with the TOSHA Administrator no later than the close of the next working day following the date on which abatement was originally required. A later-filed petition shall be accompanied by the employer’s statement of exceptional circumstances explaining the delay. 1. A copy of such petition shall be posted in a conspicuous place where all affected employees will have notice thereof or near such location where the violation occurred. The petition shall remain posted for a period of twenty (20) calendar days. Where affected employees are represented by an authorized representative, said representative shall be served with a copy of such petition. 2. Affected employees or their representative(s) may file an objection in writing to such petition with the aforesaid Administrator. Failure to file such objection within twenty (20) calendar days of the date of posting of such petition or of service upon an authorized representative shall constitute a waiver of any further right to object to said petition. 3. The Commissioner or his duly authorized agent shall have the authority to approve any petition for modification of abatement date filed pursuant to subparagraphs (b) and (c) of paragraph (7) of this rule. Such uncontested petitions shall become final orders pursuant to T.C.A. §50-3-307(a) and (b). 4. The Commissioner or his authorized representative shall not exercise his approval power until the expiration of twenty (20) calendar days from the date the petition was posted or served pursuant to items 1. and 2. of subparagraph (c) of paragraph (7) of this rule by the employer. (d) When any such petition is objected to by the Commissioner or affected employees or their authorized representative(s), the petition, citation and any objections shall be forwarded to the TOSHRC within three (3) working days after the expiration of the twenty (20) day period set out in item 4. of subparagraph (c) of paragraph (7) of this rule.