§396-4  Powers and duties of department. (a)  Administration.  The department shall be responsible for administeringoccupational safety and health standards throughout the State.

(1)  The department shall prescribe and enforce rulesunder chapter 91 as may be necessary for carrying out the purposes andprovisions of this chapter.  The department shall make reports to the Secretaryof Labor in the form and containing the information that the Secretary fromtime to time shall require pursuant to federal law;

(2)  The department shall adopt, amend, or repealoccupational safety and health standards in the manner prescribed by rulesadopted hereunder.  Emergency temporary standards may be adopted withoutconforming to chapter 91 and without hearings to take immediate effect upongiving a statewide public notice of the emergency temporary standard or uponany other date that may be specified in the notice.  An emergency temporarystandard may be adopted if the director determines:

(A)  That employees are exposed to grave dangerfrom exposure to substances or agents determined to be toxic or physicallyharmful or from new hazards; and

(B)  That the emergency standard is necessaryto protect employees from danger. 

The emergency temporary standard shall be effectiveuntil superseded by a standard adopted in accordance with the procedures setforth in chapter 91, but in any case shall be effective no longer than sixmonths;

(3)  Variances from occupational safety and healthstandards adopted under this chapter may be granted upon application of anemployer or employers.  Application for variances must correspond to proceduresset forth in the rules of this chapter.  The director may issue an order forvariance if the director determines that the proponent of the variance hasdemonstrated that the conditions, practices, means, methods, operations, orprocesses used or proposed to be used by the employer will provide employmentand places of employment to the employer's employees which are as safe andhealthful as those which would prevail if the employer complied with thestandard.  The employer shall also notify the employer's employees upon eachapplication for variance and the employees shall be given an opportunity torequest and participate in hearings or other proceedings relating toapplications for variance.  No inference of admission of violation of astandard shall be made against the employer by reason of the employer'sapplication for variance; and

(4)  The department, upon the application of anyemployer or other person affected thereby, may grant any time that mayreasonably be necessary for compliance with any order.  Any person affected byan order may petition the department for an extension of time, which may begranted if the department finds it necessary; and

(5)  The department shall regulate hoisting machinesand shall certify their operators.

(b)  Inspection and investigation.

(1)  Authorized representatives of the director shallhave the right to enter without delay any place of employment during regularworking hours and at other reasonable times;

(2)  The department shall inspect places of employmentand machines, devices, apparatus, and equipment for the purpose of insuringadequate protection to the life, safety and health of workers;

(3)  The department shall inspect constructionactivities for the purpose of protecting the health and safety of employees andthe general public.  A construction activity includes any activity related tothe erection, construction, alteration, demolition or maintenance of buildings,structures, bridges, highways, roadways, dams, tunnels, sewers, undergroundbuildings or structures, underground pipelines or ducts, and any otherconstruction project or facility;

(4)  The department may investigate the cause of allindustrial injuries resulting in disability or death which occur in anyemployment, or place of employment, and may make reasonable orders andrecommendations with respect to the cause of the injuries;

(5)  The department shall have the right to questionprivately any employer, owner, operator, agent or employee in investigation,enforcement and inspection activities;

(6)  There shall be a prohibition against advancenotice of inspection except that written exception may be expressly authorizedby the director in the director's discretion and pursuant to the rules andregulations promulgated under this chapter.  Those inspections requiringadvance notice for preparation or for other purposes of inspection as furtherdefined in the rules and regulations promulgated under this chapter shall notbe included in the prohibition against advance notice;

(7)  An employee of the State acting within the scopeof the employee's office, employment, or authority under this chapter shall notbe liable in or made a party to any civil action growing out of theadministration or enforcement of this chapter.

(c)  Education and training.

(1)  The department may disseminate throughexhibitions, moving pictures, lectures, pamphlets, and any other method ofpublicity, information to employers, employees and the general public regardingthe causes and prevention of industrial accidents and injuries.

(2)  Where appropriate, the department shall undertakeprograms in training and consultation with employers and employees as a means ofencouraging voluntary compliance.

(d)  Enforcement.

(1)  Whenever right of entry or inspection is refusedto an authorized representative of the director, the department may apply tothe circuit court of the circuit where such place of employment exists for asearch warrant providing on its face that the wilful interference with itslawful execution may be punished as a contempt of court.

(2)  Whenever the department finds that any employmentor place of employment or the operation of any machine, device, apparatus, orequipment is not safe, or that any practice, means, method, operation, orprocess employed or used in connection therewith is unsafe or does not affordadequate protection to the life, safety and health of employees in theemployment, the department shall make a citation or an order relative theretowhich is necessary to render the employment or place of employment safe andprotect the life and safety of employees therein and deliver the same to theemployer.  The department may in the citation or order direct that, in themanner and within a time specified, such additions, repairs, improvements, orchanges be made and such safety devices and safeguards be furnished, providedand used as are reasonably required to render the employment or place ofemployment safe.  The employer shall obey and observe all citations or safetyorders and post said citation or order at or near the place where theviolation, referred to in the citation or order occurred.

(3)  Whenever in the opinion of the department thecondition of any employment or place of employment, or the operation of anymachine, device, apparatus, or equipment, or any practice, means, method,operation, or process employed or used, is in an unsafe condition or is notproperly guarded or is dangerously placed, the use thereof may be prohibited bythe department, and a citation or order to that effect shall be postedprominently in the working place.  The citation or order shall be removed:  (A)when a determination has been made by the department that the place ofemployment, machine, device, apparatus, or equipment is made safe and therequired safeguards or safety devices are provided for; and (B) by anauthorized representative of the department.

(4)  Whenever in the opinion of the department thecondition of any employment or place of employment, or the operation of anymachine, device, apparatus, or equipment, or any practice, means, method,operation, or process employed or used constitutes an imminent hazard to thelife or safety of any person, the department may apply to the circuit court ofthe circuit in which such place of employment, machine, device, apparatus, orequipment is situated or such practice, means, method, operation, or process isemployed for an injunction restraining the use or operation thereof until theuse or operation is made safe.

The application to the circuit courtaccompanied by an affidavit showing that the use or operation exists inviolation of a standard, rule, regulation, citation or order of the departmentand constitutes an imminent hazard to the life or safety of any employee, andaccompanied by a copy of the standard, rule, regulation, citation or orderapplicable thereto, shall warrant, in the discretion of the court, theimmediate granting of a temporary restraining order.  If the departmentarbitrarily or capriciously fails to seek relief under this section, anyemployee who may be injured by reason of such failure or a representative ofsaid employee may bring an action against the department in the circuit courtof the circuit in which the imminent hazard is alleged to exist for a writ ofmandamus to compel the department to seek such an order and for such furtherrelief as may be appropriate.  No bond shall be required from the department asa prerequisite to the granting of a restraining order.

(5)  The director and the director's authorized agentsshall have the same powers respecting the administering of oaths, compellingthe attendance of witnesses, the production of documentary evidence, and examiningor causing to be examined witnesses as are possessed by a court, and may takedepositions and certify to official acts.  The circuit court of any circuitupon application by the director shall have power to enforce by properproceedings the attendance and testimony of any witness so subpoenaed. Subpoena and witness fees and mileage in such cases shall be the same as incriminal cases in the circuit courts.  Necessary expenses of or in connectionwith any such hearings or investigations shall be payable from the fundsappropriated for expenses of administration of the department.

No person shall be excused fromattending or testifying or producing material, books, paper, correspondence,memoranda, and other records before the director or in obedience to subpoena onthe grounds that the testimony or evidence, documentary or otherwise, requiredof the person may tend to incriminate the person or subject the person to apenalty or forfeiture; but no individual shall be prosecuted or subjected to anypenalty or forfeiture for or on account of any transaction, matter, or thingconcerning which the individual is compelled, after having claimed theindividual's privilege against self-incrimination, to testify or produceevidence, documentary, or otherwise, except that such individuals so testifyingshall not be exempt from prosecution and punishment for perjury committed in sotestifying.

(6)  Where a condition or practice in a place ofemployment could reasonably be expected to cause death or serious physicalharm, the department shall have the right, independent of any other enforcementpowers under this chapter, to:  (A) immediately inform the employees andemployers of such hazard by meeting, posted notice, or otherwise; (B) takesteps to obtain immediate abatement of the hazard by the employer and whereappropriate to initiate necessary legal proceedings to require such abatement.

(7)  The department may prosecute, defend, andmaintain actions in the name of the department for the enforcement of the provisionsof this chapter, including the enforcement of any order issued by it, theappeal of any administrative or court decision, and other actions necessary toenforce this chapter. [L 1972, c 57, pt of §1; am L 1974, c 152, §2; am L 1975,c 50, §2; am L 1976, c 95, §§3 to 5; am L 1980, c 19, §2; gen ch 1985; am L1994, c 130, §§2, 4; am L Sp 1995, c 12, §§1, 2; am L 1997, c 347, §2; am L1998, c 2, §95; am L 1999, c 28, §§1, 2]

 

Note

 

  Transfer of funds.  L 1994, c 130, §4; L Sp 1995, c 12, §2.

 

Cross References

 

  Depositions, see chapter 624.

  Oaths, subpoenas, see §§1-21, 603-21.9, 621-1, 621-12.

 

Rules of Court

 

  Injunctions, see HRCP rule 65.