Title of Regulation: 16VAC25-60. Administrative Regulation for the Virginia Occupational Safety and Health Program (amending 16VAC25-60-10, 16VAC25-60-20, 16VAC25-60-30, 16VAC25-60-260, 16VAC25-60-270, 16VAC25-60-280).

Statutory Authority: §§ 40.1-2.1, 40.1-6, and 40.1-22 of the Code of Virginia; Occupational Safety and Health Act of 1970 (P.L. 91-596).

Public Hearing Information: A public hearing will be scheduled. Contact the agency for details.

Public Comment Deadline: November 3, 2017.

Agency Contact: John J. Crisanti, Policy and Planning Manager, Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804) 786-4300, FAX (804) 786-8418, or email john.crisanti@doli.virginia.gov.

Basis: The Safety and Health Codes Board is authorized by subdivision 5 of § 40.1-22 of the Code of Virginia to adopt regulations to further, protect, and promote the safety and health of employees in places of employment over which it has jurisdiction and to effect compliance with the federal Occupational Safety and Health Act of 1970 (P.L. 91-596) and as may be necessary to carry out its functions established under Title 40.1 of the Code of Virginia. In adopting regulations to protect the occupational safety and health of employees, the board must adopt the standard that most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity. However, such standards must be at least as stringent as the standards promulgated by the federal Occupational Safety and Health Act of 1970. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experiences gained under this and other health and safety laws.

Purpose: The purpose of the amendments is to establish procedures for the application of penalties for state and local government employers in accordance with § 40.1-2.1 of the Code of Virginia. Recent incidents that have resulted in the death of government employees, as well as other accident situations, have highlighted a need for an additional incentive for compliance with safety and health laws and regulations. From January 1, 2007, to August 1, 2014, 29 fatalities and catastrophes occurred in state and local government employment. The deterrent effect of a penalty can reduce this number by encouraging compliance and thereby protecting the health and safety of state and local government employees.

Substance: This proposed amendment addresses certain issues in regard to the Administrative Regulation for the Virginia Occupational Safety and Health Program of the VOSH program.

The proposed amendment establishes procedures for the application of penalties for state and local government employers in accordance with § 40.1-2.1 of the Code of Virginia. Chapter 526 of the 2016 Acts of Assembly allows the board to authorize the Commissioner of Labor and Industry to issue penalties to state and local government employers. During the legislative process, the Department of Labor and Industry represented to General Assembly members that it would pursue authorization from the board to allow the issuance of proposed penalties to state and local government employers for willful, repeat, and failure-to-abate violations, as well as serious violations that cause a fatal accident or are classified as "high gravity," that is, a violation that is classified as "high severity" and "high probability." An example of a "high gravity" serious violation would be one where a violation directly results in nonfatal but serious injuries such as broken bones or amputations. Violations that are classified as non-high gravity serious and other-than-serious violations would not receive a penalty.

Issues: There is no primary advantage or disadvantage to the public.

The primary advantage to the agency or the Commonwealth: If the proposed imposition of penalties has the anticipated deterrent effect, proactive steps to develop and implement injury and illness prevention programs can have a significant positive impact in reducing injury and illness rates and the significant associated costs for state and local government employers. Recent incidents that have resulted in the death of government employees, as well as other accident situations, have highlighted a need for an additional incentive for compliance with the safety and health laws and regulations. From January 1, 2007, to August 1, 2014, 29 fatalities and catastrophes occurred in state and local government employment. The deterrent effect of a penalty can reduce this number by encouraging compliance. The department introduced this legislation in 2007 based on what it viewed at the time as a high number of fatalities among government employees. Unfortunately, the rate of fatalities and catastrophes for state and local employees has increased from an average of 2.2 per year before the department introduced the legislation to 3.9 per year since then.

Another primary advantage to the agency is that action by the General Assembly during the 2016 Session of the General Assembly amended the language in the existing statute to allow the issuance of monetary penalties to state and local government employers for certain occupational safety and health program violations. On March 29, 2016, a statutory change approved by the General Assembly was signed by Governor McAuliffe with an effective date of July 1, 2016. Perhaps, a primary disadvantage to the Commonwealth would be that state and local government employers now will be issued a penalty for violations of occupational safety and health laws in which a worker can be seriously injured or killed.

An average of three willful violations have been issued by the Virginia Occupational Safety and Health (VOSH) per year in the public sector. Since 2007, there have been 24 willful violations, all of which have been issued to local government employers. An average of 1.4 repeated violations are issued per year to local government and 3.3 to state agencies.

Approximately 5.0% of the serious violations issued are classified as high gravity. VOSH estimates that 15 such violations in state and local government would be subject to penalty per year. The average penalty issued for high gravity serious items is $6,300.

VOSH estimates there are up to three willful violations per year and up to five repeat violations per year. The average penalty for a "high gravity" willful violation is $63,000 and for a repeat is $12,600.

VOSH estimates that the total penalties on a per-year basis could range from zero to $346,500.¹ In 2015, the National Safety Council reported that the average cost of a medically consulted occupational injury in 2013 was $42,000.

The Washington State Plan, which is tied directly into the states' workers' compensation system, conducted a study on "The impact of DOSH Enforcement and Consultation Visits on Workers' Compensation Claims Rates and costs, 1999-2008,"² May, 2011. The study reviewed 10 annual studies on the topic and found that:

"…enforcement inspections conducted at fixed worksites ‘were associated with a 7.4% larger decrease in non-MSD [musculoskeletal disorder] compensable claims rates relative to employers with no DOSH activity. DOSH consultation visits were associated with a 24.8% larger decrease in non-MSD compensable claims rates relative to employers with no DOSH activity" and "…enforcement inspections were associated with a 3.1% larger decrease in compensable claims rates relative to employers with no DOSH activity. DOSH consultation visits were associated with an 8.5% larger decrease in compensable claims rates relative to employers with no DOSH activity."

Virginia employees will benefit from the identification and correction of workplace hazards as a result of cited violations and issued penalties, the development and implementation of injury and illness prevention programs, and the anticipated reduction in injuries and illnesses. No adverse impacts to employees are anticipated from the adoption of the proposed amendments.

According to OSHA publication, "Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job," the costs of workplace injury and illness are borne primarily by injured workers, their families, and taxpayer supported safety net programs; workers' compensation payments cover only a small fraction (about 21%) of lost wages and medical costs of work injuries and illnesses. Workers, their families, and private health insurance pay for nearly 63% of these costs, with taxpayers shouldering the remaining 16%.³

Adding penalties to citations issued does not significantly increase the workload for an individual VOSH Compliance Safety and Health Officer. It is only anticipated that approximately 21 violations per year will carry a penalty for state and local government employers.

No adverse impacts to employees are anticipated from the adoption of the proposed amendments.

Other than training DOLI employees on the changes to the regulation, no additional fiscal or other programmatic impacts are anticipated for the department from the adoption of the proposed amendments.

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¹ § 40.1-49.4 A 4 (a) of the Code of Virginia provides that the calculation of penalties shall take into account the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

² http://www.Ini.wa.gov/Safety/Research/Files/OccHealth/DoshEnforce
19992008.pdf

³ https://www.osha.gov/Publications/inequality_michaels_june2015.pdf

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 526 of the 2016 Acts of the Assembly,¹ the Safety and Health Codes Board (Board) proposes to amend the Administrative Regulation for the Virginia Occupational Safety and Health Program (VOSH program regulation) to allow the assessment of monetary penalties against public sector employers² for willful, repeat or failure-to-abate health and safety violations, as well as serious health and safety violations that cause a fatality or are classified as "high gravity."³

Result of Analysis. There is insufficient information to ascertain whether benefits will outweigh costs for this proposed regulation.

Estimated Economic Impact. Current regulation, and state law before Chapter 526 was passed, allows the Board's VOSH program to inspect the workplaces of public sector employers and issue notices of health and safety violation to them, but does not allow the issuance of monetary penalties to these entities. In accordance with Chapter 526, the Board now proposes to amend this regulation so that the Commissioner of Labor and Industry (Commissioner) may issue civil (monetary) penalties for willful, repeat or failure-to-abate health and safety violations. The Commissioner may also issue civil penalties for serious violations that result in a fatality or that are classified as "high gravity" violations. The Board also, as required by Chapter 526, proposes to add language to this regulation that allows public sector employers to contest proposed penalties to the Commissioner. The Commissioner can then initiate judicial proceedings if agreement on citations or penalties cannot be reached.

Board staff reports that the maximum penalty for a serious violation that results in a fatality or that is classified as "high gravity" is currently $7,000 and the maximum penalty for a willful, repeat or failure-to-abate violation is currently $70,000. A bill was passed in the 2017 General Assembly session,⁴ however, that will increase these maximum penalties to $12,471 and $124,709 respectively.⁵ Board staff reports that they compiled information on public sector employer incidences between 2007 and 2014 and found approximately 20 cases that involved either a fatality or a catastrophe where three or more employees were hospitalized or were considered willful violations. Of those cases, Board staff estimates that 15 involved one or more violations⁶ that would have resulted in monetary penalties if these employers had been private businesses. Of these cases, one involved a state agency and 19 involved a locality; proposed penalties would have ranged between approximately $5,250 and $280,000. As these possible penalties were calculated under current maximum statutory penalty language, proposed penalties for cases decided after this proposed regulation goes into effect would likely be about 80% higher than these numbers (between approximately $9,300 and $498,000). Board staff estimates that there may be approximately three willful violations and five repeat violations, as well as 15 serious violations resulting in a fatality or serious injury, each year that would be subject to penalties on account of this proposed regulation.

Board staff reports that these regulatory changes, and the law change that allowed them, are being pursued in order to induce public sector employers to better comply with rules aimed at protecting the health and safety of their employees. Monetary penalties issued against private sector employers are likely an effective means of focusing those employers on safety and reducing the number and severity of violations. Such penalties are a cost that lowers total profit for those businesses. To the extent that those costs can be avoided (in a way that costs less than the penalties would) companies can increase their profits by better protecting the safety of their employees.

This profit motive does not exist in the public sector and so monetary penalties may not induce public sector employers in the same way, or as effectively, as they do private businesses. Large state agencies and localities with larger budgets in particular would likely be less motivated to change their behavior as a result of VOSH program penalties. Monetary penalties may be somewhat more effective in focusing smaller agencies and localities on safety, because the people managing deficient employee areas or projects are more likely to be aware of the effects of any additional costs on total agency or locality budgets, and because any penalty would likely represent a larger part of that total budget. Board staff reports, for instance, that even a penalty as relatively small as $15,000 would completely eliminate the Department of Labor and Industry's annual conference budget for training VOSH inspectors. Board staff also reports that all penalties would likely be paid out of state general fund or non-general fund monies (or local tax revenues) as it is unlikely that the federal government would allow federal funds to be used for such a purpose even for public programs where there are traditionally federal matching funds. To the extent that penalties are very large, they may impact the ability of state agencies to carry out their other duties and may require localities to curtail some services (even ones that may affect the health and safety of local citizens).

Businesses and Entities Affected. These proposed regulatory changes will affect all 133 localities, all state agencies and any other independent public sector employers who have employees in the Commonwealth.

Localities Particularly Affected. Localities that have a greater number of building projects may be particularly affected.

Projected Impact on Employment. There may be some (likely very) small decrease in public sector employment if VOSH penalties prove large enough to cause localities to curtail some services.

Effects on the Use and Value of Private Property. This proposed regulation is unlikely to affect the use or value of private property in the Commonwealth.

Real Estate Development Costs. These proposed regulatory changes are unlikely to affect real estate development costs in the Commonwealth.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. These proposed regulatory changes are unlikely to affect small businesses.

Alternative Method that Minimizes Adverse Impact. These proposed regulatory changes are unlikely to affect small businesses.

Adverse Impacts:

Businesses. These proposed regulatory changes are unlikely to affect any private business in the Commonwealth.

Localities. Localities will be subject to monetary VOSH program penalties after this proposed regulation becomes effective.

Other Entities. State agencies, and any other independent public sector employers who have employees in the Commonwealth, will be subject to monetary VOSH program penalties after this proposed regulation becomes effective.

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¹ http://leg1.state.va.us/cgi-bin/legp504.exe?161+ful+CHAP0526

² Such employers include Virginia state agencies and Virginia localities as well as other independent public sector entities, like the Metropolitan Washington Transit Authority and the Metropolitan Washington Airports Authority, that conduct work within Virginia's jurisdiction.

³ High gravity violations are those that result in nonfatal but serious injuries like broken bones or amputations.

⁴ http://leg1.state.va.us/cgi-bin/legp504.exe?171+ful+CHAP0263. This Chapter also requires, beginning in 2018, the Commissioner to annually adjust maximum penalties by the percentage increase of the Consumer Price Index for all Urban Consumers.

⁵ Penalties will increase on July 1, 2017 for private employers and will be instituted at the higher rate for public employers when this proposed regulation becomes effective.

⁶ The range of the number of violations was one to eight.

Agency's Response to Economic Impact Analysis: The Department of Labor and Industry has no additional comment in response to the economic impact analysis.

Summary:

The proposed amendments (i) establish procedures for the application of penalties for state and local government employers in accordance with § 40.1-2.1 of the Code of Virginia and (ii) allow Virginia Occupational Safety and Health to issue proposed penalties to state and local government employers for willful, repeat, and failure-to-abate violations, as well as serious violations that cause a fatal accident or are classified as "high gravity" (i.e., a violation that is classified as "high severity" and "high probability"). Violations that are classified as nonhigh gravity serious, and other-than-serious violations would not receive a penalty.

Part I
Definitions

16VAC25-60-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Abatement period" means the period of time defined or set out in the citation for correction of a violation.

"Board" means the Safety and Health Codes Board.

"Bureau of Labor Statistics" means the Bureau of Labor Statistics of the United States U.S. Department of Labor.

"Citation" means the notice to an employer that the commissioner has found a condition or conditions that violate Title 40.1 of the Code of Virginia or the standards, rules or regulations established by the commissioner or the board.

"Commissioner" means the Commissioner of Labor and Industry. Except where the context clearly indicates the contrary, any such reference shall include his authorized representatives.

"Commissioner of Labor and Industry" means only the individual who is Commissioner of Labor and Industry.

"Department" means the Virginia Department of Labor and Industry.

"De minimis violation" means a violation which that has no direct or immediate relationship to safety and health.

"Employee" means an employee of an employer who is employed in a business of his employer.

"Employee representative" means a person specified by employees to serve as their representative.

"Employer" means any person or entity engaged in business who has employees but does not include the United States.

"Establishment" means, for the purpose of record keeping recordkeeping requirements, a single physical location where business is conducted or where services or industrial operations are performed, e.g. for example, factory, mill, store, hotel, restaurant, movie theater, farm, ranch, bank, sales office, warehouse, or central administrative office. Where distinctly separate activities are performed at a single physical location, such as contract activities operated from the same physical location as a lumberyard;, each activity is a separate establishment. In the public sector, an establishment is either (i) a single physical location where a specific governmental function is performed; or (ii) that location which is the lowest level where attendance or payroll records are kept for a group of employees who are in the same specific organizational unit, even though the activities are carried on at more than a single physical location.

"Failure to abate" means that the employer has failed to correct a cited violation within the period permitted for its correction.

"FOIA" means the Freedom of Information Act.

"Gravity based penalty" means an unadjusted penalty that is calculated based on the severity of the hazard and the probability that an injury or illness would result from the hazard.

"High gravity violation" means a violation with a gravity based penalty calculated at the statutory maximums contained in subsections H, I, and J of § 40.1-49.4 of the Code of Virginia.

"Imminent danger condition" means any condition or practice in any place of employment such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through standard enforcement procedures provided by Title 40.1 of the Code of Virginia.

"OSHA" means the Occupational Safety and Health Administration of the United States U.S. Department of Labor.

"Other violation" means a violation which is not, by itself, a serious violation within the meaning of the law but which has a direct or immediate relationship to occupational safety or health.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public employer" means the Commonwealth of Virginia, including its agencies, authorities, or instrumentalities or any political subdivision or public body.

"Public employee" means any employee of a public employer. Volunteer members of volunteer fire departments, pursuant to § 27-42 of the Code of Virginia, members of volunteer rescue squads who serve without pay, and other volunteers pursuant to the Virginia State Government Volunteers Act are not public employees. Prisoners confined in jails controlled by any political subdivision of the Commonwealth and prisoners in institutions controlled by the Department of Corrections are not public employees unless employed by a public employer in a work-release program pursuant to § 53.1-60 or § 53.1-131 of the Code of Virginia.

"Public employer" means the Commonwealth of Virginia, including its agencies, authorities, or instrumentalities or any political subdivision or public body.

"Recordable occupational injury and illness" means (i) a fatality, regardless of the time between the injury and death or the length of illness; (ii) a nonfatal case that results in lost work days; or (iii) a nonfatal case without lost work days which results in transfer to another job or termination of employment, which requires medical treatment other than first aid, or involves loss of consciousness or restriction of work or motion. This category also includes any diagnosed occupational illness which is reported to the employer but is not otherwise classified as a fatality or lost work day case.

"Repeated violation" means a violation deemed to exist in a place of employment that is substantially similar to a previous violation of a law, standard or regulation that was the subject of a prior final order against the same employer. A repeated violation results from an inadvertent or accidental act, since a violation otherwise repeated would be willful.

"Serious violation" means a violation deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. The term "substantial probability" does not refer to the likelihood that illness or injury will result from the violative condition but to the likelihood that, if illness or injury does occur, death or serious physical harm will be the result.

"Standard" means an occupational safety and health standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

"VOSH" means Virginia Occupational Safety and Health.

"Willful violation" means a violation deemed to exist in a place of employment where (i) the employer committed an intentional and knowing, as contrasted with inadvertent, violation and the employer was conscious that what he was doing constituted a violation; or (ii) the employer, even though not consciously committing a violation, was aware that a hazardous condition existed and made no reasonable effort to eliminate the condition.

"Working days" means Monday through Friday, excluding legal holidays, Saturday, and Sunday.

Part II
General Provisions

16VAC25-60-20. Jurisdiction.

All Virginia statutes, standards, and regulations pertaining to occupational safety and health shall apply to every employer, employee, and place of employment in the Commonwealth of Virginia except where:

1. The United States is the employer or exercises exclusive jurisdiction;

2. The federal Occupational Safety and Health Act of 1970 does not apply by virtue of § 4(b)(1) of that Act. The commissioner shall consider federal OSHA case law in determining where jurisdiction over specific working conditions has been preempted by the regulations of a federal agency; or

3. The employer is a public employer, as that term is defined in this chapter. In such cases, the Virginia laws, standards, and regulations governing occupational safety and health are applicable as stated, including 16VAC25-60-10, 16VAC25-60-30, 16VAC25-60-260, 16VAC25-60-280, 16VAC25-60-290, and 16VAC25-60-300.

16VAC25-60-30. Applicability to public employers.

A. All occupational safety and health standards adopted by the board shall apply to public employers and their employees in the same manner as to private employers.

B. All sections of this chapter shall apply to public employers and their employees. Where specific procedures are set out for the public sector, such procedures shall take precedence.

C. The following portions of Title 40.1 of the Code of Virginia shall apply to public employers: §§ § 40.1-10,; subdivisions A 1 and A 4, except that the reference to subsection G in subdivision A 4 does not apply, and subsections C, D, H, I, and J of § 40.1-49.4 A(1),; and §§ 40.1-49.8, 40.1-51, 40.1-51.1, 40.1-51.2, 40.1-51.2:1, 40.1-51.3, 40.1-51.3:2, and 40.1-51.4:2.

D. Section 40.1-51.2:2 A of the Code of Virginia shall apply to public employers except that the commissioner shall not bring action in circuit court in the event that a voluntary agreement cannot be obtained.

E. Sections 40.1-49.4 Subdivision A 4, except that the reference to subsection G in subdivision A 4 does not apply, and subsections C, D, F, H, I, and J of § 40.1-49.4 of the Code of Virginia and §§ 40.1-49.9, 40.1-49.10, 40.1-49.11, 40.1-49.12, and 40.1-51.2:2 of the Code of Virginia shall apply to public employers other than the Commonwealth and its agencies.

F. If the commissioner determines that an imminent danger situation, as defined in § 40.1-49.4 F of the Code of Virginia, exists for an employee of the Commonwealth or one of its agencies, and if the employer does not abate that imminent danger immediately upon request, the Commissioner of Labor and Industry shall forthwith petition the governor to direct that the imminent danger be abated.

G. If the commissioner is unable to obtain a voluntary agreement to resolve a violation of § 40.1-51.2:1 of the Code of Virginia by the Commonwealth or one of its agencies, the Commissioner of Labor and Industry shall petition for redress in the manner provided in this chapter.

Part VI
Citation and Penalty

16VAC25-60-260. Issuance of citation and proposed penalty.

A. Each citation shall be in writing and describe with particularity the nature of the violation or violations, including a reference to the appropriate safety or health provision of Title 40.1 of the Code of Virginia or the appropriate rule, regulation, or standard. In addition, the citation must fix a reasonable time for abatement of the violation. The commissioner shall have authority to propose penalties for cited violations in accordance with § 40.1-49.4 of the Code of Virginia and this chapter. The citation will contain substantially the following: "NOTICE: This citation will become a final order of the commissioner unless contested within fifteen working days from the date of receipt by the employer." The citation may be delivered to the employer or his agent by the commissioner or may be sent by certified mail or by personal service to an officer or agent of the employer or to the registered agent if the employer is a corporation.

1. No citation may be issued after the expiration of six months following the occurrence of any alleged violation. The six-month time frame timeframe is deemed to be tolled on the date the citation is issued by the commissioner, without regard for when the citation is received by the employer. For purposes of calculating the six-month time frame timeframe for citation issuance, the following requirements shall apply:

a. The six-month time frame timeframe begins to run on the day after the incident or event occurred or notice was received by the commissioner (as specified below) in subdivisions 1 b through e of this subsection), in accordance with § 1-210 A of the Code of Virginia. The word "month" shall be construed to mean one calendar month in accordance with § 1-223 of the Code of Virginia.

b. An alleged violation is deemed to have "occurred" on the day it was initially created by commission or omission on the part of the creating employer, and every day thereafter that it remains in existence uncorrected.

c. Notwithstanding subdivision 1 a of this subsection, if an employer fails to notify the commissioner of any work-related incident resulting in a fatality or in the in-patient hospitalization of three or more persons within eight hours of such occurrence as required by § 40.1-51.1 D of the Code of Virginia, the six-month time frame timeframe shall not be deemed to commence until the commissioner receives actual notice of the incident.

d. Notwithstanding subdivision 1 a of this subsection, if the commissioner is first notified of a work-related incident resulting in an injury or illness to an employee(s) employee through receipt of an Employer's Accident Report (EAR) form from the Virginia Workers' Compensation Commission as provided in § 65.2-900 of the Code of Virginia, the six-month time frame timeframe shall not be deemed to commence until the commissioner actually receives the EAR form.

e. Notwithstanding subdivision 1 a of this subsection, if the commissioner is first notified of a work-related hazard, or incident resulting in an injury or illness to an employee(s) employee, through receipt of a complaint in accordance with 16VAC25-60-100 or referral, the six-month time frame timeframe shall not be deemed to commence until the commissioner actually receives the complaint or referral.

B. A citation issued under subsection A of this section to an employer who violates any VOSH law, standard, rule or regulation shall be vacated if such employer demonstrates that:

1. Employees of such employer have been provided with the proper training and equipment to prevent such a violation;

2. Work rules designed to prevent such a violation have been established and adequately communicated to employees by such employer and have been effectively enforced when such a violation has been discovered;

3. The failure of employees to observe work rules led to the violation; and

4. Reasonable steps have been taken by such employer to discover any such violation.

C. For the purposes of subsection B of this section only, the term "employee" shall not include any officer, management official or supervisor having direction, management control or custody of any place of employment which was the subject of the violative condition cited.

D. The penalties as set forth in § 40.1-49.4 of the Code of Virginia shall also apply to violations relating to the requirements for record keeping recordkeeping, reports or other documents filed or required to be maintained and to posting requirements.

E. In determining the amount of the proposed penalty for a violation the commissioner will ordinarily be guided by the system of penalty adjustment set forth in the VOSH Field Operations Manual. In any event the commissioner shall consider the gravity of the violation, the size of the business, the good faith of the employer, and the employer's history of previous violations.

The commissioner shall have authority to propose civil penalties to public employers for willful, repeat, and failure-to-abate violations in accordance with subsections I and J of § 40.1-49.4, and for serious violations that cause death to an employee or are classified as high gravity in accordance with subsection H of § 40.1-49.4.

F. On multi-employer worksites for all covered industries, citations shall normally be issued to an employer whose employee is exposed to an occupational hazard (the exposing employer). Additionally, the following employers shall normally be cited, whether or not their own employees are exposed:

1. The employer who actually creates the hazard (the creating employer);

2. The employer who is either:

a. Responsible, by contract or through actual practice, for safety and health conditions on the entire worksite, and has the authority for ensuring that the hazardous condition is corrected (the controlling employer); or

b. Responsible, by contract or through actual practice, for safety and health conditions for a specific area of the worksite, or specific work practice, or specific phase of a construction project, and has the authority for ensuring that the hazardous condition is corrected (the controlling employer); or

3. The employer who has the responsibility for actually correcting the hazard (the correcting employer).

G. A citation issued under subsection F of this section to an exposing employer who violates any VOSH law, standard, rule or regulation shall be vacated if such employer demonstrates that:

1. The employer did not create the hazard;

2. The employer did not have the responsibility or the authority to have the hazard corrected;

3. The employer did not have the ability to correct or remove the hazard;

4. The employer can demonstrate that the creating, the controlling and/or or the correcting employers, as appropriate, have been specifically notified of the hazards to which his employees were exposed;

5. The employer has instructed his employees to recognize the hazard and, where necessary, informed them how to avoid the dangers associated with it;

6. Where feasible, an exposing employer must have taken appropriate alternative means of protecting employees from the hazard; and

7. When extreme circumstances justify it, the exposing employer shall have removed his employees from the job.

16VAC25-60-270. Contest of citation or proposed penalty; general proceedings.

A. An employer to whom a citation, abatement order, or proposed penalty has been issued may contest the citation by notifying the commissioner in writing of the contest. The notice of contest must be mailed or delivered by hand within 15 working days from the receipt of the citation or proposed penalty. No mistake, inadvertence, or neglect on the part of the employer shall serve to extend the 15-working-day period in which the employer must contest.

B. The notice of contest shall indicate whether the employer is contesting the alleged violation, the proposed penalty or the abatement time.

C. Employees may contest abatement orders by notifying the commissioner in the same manner as described in subsection A of this section.

C. D. The employer's contest of a citation or proposed penalty shall not affect the citation posting requirements of 16VAC25-60-40 unless and until the court ruling on the contest vacates the citation.

D. E. When the commissioner has received written notification of a contest of citation or proposed penalty, he will attempt to resolve the matter by settlement, using the procedures of 16VAC25-60-330 and 16VAC25-60-340.

E. F. If the matter is not settled or it is determined that settlement does not appear probable, the commissioner will initiate judicial proceedings by referring the contested issues to the appropriate Commonwealth's Attorney and arranging for the filing of a bill of complaint and issuance of a subpoena to the employer.

F. G. A contest of the proposed penalty only shall not stay the time for abatement.

16VAC25-60-280. General contest proceedings applicable to the public sector.

A. The commissioner will not propose penalties for citations issued to public employers.

B. A. Public employers may contest citations or, abatement orders, or proposed penalties by notifying the commissioner in writing of the contest. The notice of contest must be mailed or delivered by hand within 15 working days from receipt of the citation or abatement order. No mistake, inadvertence, or neglect on the part of the employer shall serve to extend the 15-working-day period during which the employer may contest.

C. B. The notice of contest shall indicate whether the public employer is contesting the alleged violations, the proposed penalty, or the abatement order.

D. C. Public employees may contest abatement orders by notifying the commissioner in the same manner as described at subsection B A of this section.

E. D. The commissioner shall seek to resolve any controversies or issues rising from a citation issued to any public employer in an informal conference as described in 16VAC25-60-330.

F. E. The contest by a public employer shall not affect the requirements to post the citation as required at 16VAC25-60-40 unless and until the commissioner's or the court ruling on the contest vacates the citation. A contest of a citation may stay the time permitted for abatement pursuant to § 40.1-49.4 C of the Code of Virginia.

F. A contest of the proposed penalty only shall not stay the time for abatement.