2010 Wyoming Statutes
Title 27 - Labor And Employment
Chapter 11 - Occupational Health And Safety

CHAPTER 11 - OCCUPATIONAL HEALTH AND SAFETY

 

27-11-101. Short title.

 

This act shall be known and may be cited as the "Wyoming Occupational Health and Safety Act."

 

27-11-102. Declaration of policy.

 

(a) It is hereby declared to be the policy of the state of Wyoming, that the primary purposes of this act are:

 

(i) That the prevention of accidents and occupational diseases and abiding by rules and regulations are the responsibility of both the employer and the employee;

 

(ii) To help and assist employers and employees in accident and occupational disease prevention through educational means, which shall be made available to all industries, businesses, employees, employee groups and associations;

 

(iii) The commission shall furnish consultant services on development of safety programs, procedures and training services for employees, supervisors and groups;

 

(iv) Commission members and its employees shall be neutral in labor management relations in carrying out the provisions of this act;

 

(v) Enforcement shall be used only to obtain compliance with the act and the rules and regulations established by the commission;

 

(vi) It is also the purpose of this act to include everyone who works in private or public employment or is self-employed; except that in the case of self-employed persons in agriculture, its purpose shall be limited to education.

 

27-11-103. Definitions.

 

(a) As used in this act:

 

(i) "Commission" means the occupational health and safety commission;

 

(ii) "Department" means the department of employment of the state of Wyoming;

 

(iii) "Employee" means a person permitted to work by an employer in employment;

 

(iv) "Employer" means any individual or organization including the state and all its political subdivisions, which has in its employ one (1) or more individuals performing services for it in employment;

 

(v) "Employment" means all services for pay under a contract of hire;

 

(vi) "Party" means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party;

 

(vii) "Person" means an individual, governmental agency, partnership, association, corporation, business, trust, receiver, trustee, legal representative or successor to any of the foregoing;

 

(viii) "Place of employment" means plant, premises, or any other place where directed by the employer or about which an employee is permitted to work;

 

(ix) "This act" means W.S. 27-11-101 through 27-11-114.

 

27-11-104. Occupational health and safety commission; generally.

 

(a) There is hereby created an occupational health and safety commission, hereinafter referred to as the "commission," which shall be composed of seven (7) members comprised of one (1) from the general field of employees or employee organizations; one (1) from the general field of business or industry; one (1) medical doctor; and four (4) from the public at large who shall all be appointed by the governor with the advice and consent of the senate without regard to political affiliation. The commission members shall choose the commission chairman annually.

 

(b) The governor may remove any commission member as provided in W.S. 9-1-202.

 

(c) The terms of the members shall be for six (6) years, except that of the initially appointed members: one (1) from the field of business, and one (1) from the field of labor shall serve six (6) years and one (1) medical doctor who shall serve for a term of six (6) years; and four (4) members from the public at large, one (1) to serve a term of two (2) years, one (1) to serve a term of three (3) years and one (1) to serve a term of four (4) years and one (1) to serve a term of five (5) years. The terms of the members shall terminate on the last day of February of the sixth year after their appointment, except as initially appointed. The governor shall appoint a member to fill a vacancy in accordance with W.S. 28-12-101.

 

(d) The commission shall hold at least four (4) regular meetings per year at such time and place as the chairman shall specify. Special meetings may be called by the chairman, and special meetings must be called by the chairman upon a written request by four (4) or more members. Four (4) members shall constitute a quorum. Rules, regulations and variances shall not be devised, formulated, adopted, amended or repealed except by majority vote of the entire membership of the commission. All other matters shall be decided by a majority vote of those in attendance and constituting a quorum.

 

(e) Repealed by Laws 1990, ch. 63, 3.

 

(f) No member of the commission nor any member of any advisory committees hereinafter referred to, not otherwise in full-time employment of the state, shall receive any salary but shall receive the same per diem, mileage and expense allowance while attending and traveling to and from meetings as officers or employees of the state are allowed.

 

(g) The commission shall contract with an independent hearing officer to hear all contests of notice of violation, proposed penalty or abatement periods for violations, as written in the notice of violation received by the employer. The hearing officer shall be a qualified member of the bar of Wyoming and may not be an employee of the office of the attorney general or the department or a member of the commission:

 

(i) The employer shall have the right to contest the alleged violation, abatement period or proposed penalty for violation as written in the notice of violation;

 

(ii) The employee or the employee representative shall have the right to contest the abatement period as stated in the notice of violation and to participate in any hearings concerning such abatement period;

 

(iii) The hearing shall be held as soon after receiving the letter of contest and in a city as near the site of occurrence as is practicable;

 

(iv) All hearings shall be conducted pursuant to the Wyoming Administrative Procedure Act. The hearing officers have the powers specified in W.S. 16-3-112(b). The hearing officer shall make written findings of fact and conclusions of law in each contested case;

 

(v) The hearing officer shall recommend a decision to the commission. The decision of the commission is the final administrative decision. A party adversely affected by a decision of the commission may appeal to the district court in the county where the violation allegedly occurred.

 

(h) Effective July 1, 1979, appointments and terms of commission members shall be in accordance with W.S. 28-12-101 through 28-12-103.

 

27-11-105. Occupational health and safety commission; powers and duties of commission and department.

 

(a) The department, in consultation with the commission, has the powers and is hereby charged with the duties:

 

(i) Repealed by Laws 1990, ch. 63, 2, 3.

 

(ii) To develop and formulate, a comprehensive program for the prevention, control and abatement of unsafe and unhealthy working conditions and to direct state agencies and their staffs to compile statistics, do research, do investigation and any other duties where practical, possible and not inconsistent with the purposes of this act;

 

(iii) To assure that all agencies and their staffs shall comply with directives of the commission in regard to occupational health and safety;

 

(iv) To cooperate, as specified in W.S. 27-2-105 and in section 24(a) of Public Law 91-596 in the collection, compilation and analysis of data relative to the occurrence of occupational injuries and illnesses;

 

(v) To compile statistics and to require such reports as may be needed to aid in accomplishing this purpose;

 

(vi) To do research on the causes and methods of preventing occupational diseases and accidents;

 

(vii) To promote accident prevention and occupational disease prevention programs and to provide consultative and educational assistance;

 

(viii) Repealed by Laws 1990, ch. 63, 2, 3.

 

(ix) Repealed by Laws 1990, ch. 63, 2, 3.

 

(x) To select or give emphasis to those areas and segments of the business and industrial community which need the concentrated attention and assistance of the commission and its employees;

 

(xi) Repealed by Laws 1990, ch. 63, 2, 3.

 

(xii) To enter into agreements with agencies of the United States government for assistance, cooperation and enforcement of safety laws and to accept funds from such federal agencies for the purpose of carrying out any of the provisions of this act;

 

(xiii) Repealed by Laws 1990, ch. 63, 2, 3.

 

(xiv) Repealed by Laws 1990, ch. 63, 2, 3.

 

(xv) Repealed by Laws 1990, ch. 63, 2, 3.

 

(xvi) To institute or cause to be instituted appropriate civil or criminal actions to enforce the provisions of this act and the rules and regulations promulgated under this act.

 

(b) The commission has the following powers and duties:

 

(i) To prescribe rules of practice and procedure;

 

(ii) To promulgate, devise, formulate, adopt, amend, and repeal rules and regulations and to appoint advisory committees equally composed of employers and employees from the industries involved to assist and advise the commission:

 

(A) All rules and regulations shall be reviewed as needed and revised as necessary. Such review would be under the same procedures as the original establishment of the rules and regulations;

 

(B) The standards set by rule and regulation by the commission shall take into consideration recognized and accepted national codes, recognized industrial standards or similar, in whole or in part, but shall not be limited exclusively to these;

 

(C) The rules and regulations shall not be more stringent than corresponding federal rules and regulations. If there are no corresponding federal rules or regulations the commission may adopt applicable state rules and regulations.

 

(iii) To exempt from coverage under this act any trade or business when the commission deems federal or other authority is adequate and dual or overlapping authority would result. If any trade or business is exempted under this section the commission shall file a detailed report with the governor showing the reasons for such exemption together with an affirmance by the federal or other authority that the coverage is adequate;

 

(iv) To require that any rules and regulations of the commission be a part of construction, maintenance or servicing contracts or other contracts as the commission may determine;

 

(v) To consider and grant in accordance with and subject to the terms and limitations provided in W.S. 27-11-111, variances from standards, rules and regulations promulgated under this act;

 

(vi) To require the employer to be charged with the following duties:

 

(A) Each employer shall furnish to his employees, a place of employment and employment which are free from recognized hazards that are causing or that are likely to cause death or serious physical harm;

 

(B) Each employer shall comply with occupational safety and health standards, rules, regulations and orders issued pursuant to this act.

 

(vii) To require the employee to be charged with the following duty, 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 his own actions and conduct.

 

27-11-106. Enforcement and administration.

 

(a) The department shall enforce and administer this act and the rules, regulations and orders promulgated and issued under this act. The commission shall have authority to hold hearings for the promulgation of rules and regulations in accordance with the Wyoming Administrative Procedure Act. In any case that goes uncontested the commission may after opportunity to show cause, enter an order of final disposition which may be enforced by any district court.

 

(b) If an imminent danger to health or safety exists, whether it is in a specific industry where rules and regulations are in effect or not, the commission or any employee of the department so authorized is hereby empowered to direct the person where such imminent danger to health and safety exists to cease operations immediately in order to eliminate such danger to health or safety. If such person does not cease operations so as to eliminate such danger, the commission, its chairman, or any employee of the department so authorized, may, with the concurrence of the attorney general, bring a civil suit in the name of the state in the district court of the county where such danger exists, or in the United States district court for Wyoming (if it otherwise has jurisdiction), to restrain such person from continuing such operations where an imminent danger to health or safety exists.

 

(c) In contested cases where no appeal has been taken from the decision of the commission within the time provided for such an appeal, the commission shall adopt the decision and order the department and employer to act in accordance with the decision. Any state district court may enforce commission orders issued in that county after a hearing where no appeal has been taken. The United States district court for Wyoming (if it otherwise has jurisdiction) may also enforce any commission order.

 

(d) Any suit, action or appeal involving this act or rule, regulation or order of the commission, shall be advanced for trial and determined as expeditiously as feasible and no postponement or continuance shall be granted unless deemed imperative by the court.

 

27-11-107. Penalty.

 

(a) Any employer willfully and knowingly violating any of the provisions of this act, any health and safety standards, rules or regulations promulgated under this act or any existing rule or regulation governing the conditions of employment promulgated by the commission, which causes death of an employee, upon conviction, shall be punished by a fine of not more than ten thousand dollars ($10,000.00) or by imprisonment of not more than six (6) months or both. If the conviction is for a violation committed after a first conviction of the same person, punishment shall be by a fine of not more than twenty thousand dollars ($20,000.00) or by imprisonment for not more than one (1) year, or by both.

 

(b) Any employer willfully and knowingly violating any of the provisions of this act, any safety and health standards, rules or regulations promulgated under this act or any existing rule or regulation governing the conditions of employment promulgated by the commission may be assessed a civil penalty of not less than five thousand dollars ($5,000.00) nor more than seventy thousand dollars ($70,000.00) for each violation, provided that a lesser penalty may be imposed by the commission.

 

(c) Any employer violating any provision of this act, any health and safety standards or rules and regulations promulgated under this act or any existing rule or regulation governing the conditions of employment promulgated by the commission, the violation specifically determined to be of a serious nature, shall be assessed a civil penalty of not more than seven thousand dollars ($7,000.00) for the violation.

 

(d) Any employer violating any provision of this act, any health and safety standards or rules and regulations promulgated under this act or any existing rule or regulation governing the conditions of employment promulgated by the commission, the violation determined not to be of a serious nature, may be assessed a civil penalty of not more than seven thousand dollars ($7,000.00) for each offense as noted in the notice of violation.

 

(e) Whoever knowingly makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this act, upon conviction, shall be punished by a fine of not more than ten thousand dollars ($10,000.00) or by imprisonment for not more than six (6) months, or both.

 

(f) Any employer who violates any of the posting requirements, as prescribed under the provisions of this act, may be assessed a civil penalty of up to seven thousand dollars ($7,000.00) for each violation.

 

(g) Any employer who fails to correct a violation for which a notice of violation has been issued, which notice of violation is not contested or appealed under W.S. 27-11-104 and 27-11-106, initiated by the employer, may be assessed a civil penalty of not more than seven thousand dollars ($7,000.00) for each day the failure or violation continues.

 

(h) Payment of all fines and penalties imposed under this section shall be made to the county treasurer of the county in which the violation occurs to be credited to the county school fund.

 

27-11-108. Right of entry and inspection; consultation with employees; penalty for giving advance notice.

 

(a) Any department authorized employee or representative of the department may enter and inspect any property, premises or place, except private residences where persons are employed, at any reasonable time to investigate health and safety conditions and compliance with safety and health laws, rules and regulations. No person conducting an inspection under this subsection shall unreasonably interfere with the operations, business or work of any employer or employee. At the opening conference, immediately before an inspection commences, the department shall notify employers in writing of their right to refuse its employees entry to investigate health and safety conditions unless the employees have a warrant issued by a court of competent jurisdiction.

 

(b) A representative or representatives of the employer and a representative or representatives authorized by the employees shall be given an opportunity to accompany any duly authorized employee or representative of the department before or during the physical inspection of any workplace for the purpose of aiding such inspection. Where there is no authorized employee representative, any duly authorized employee or representative of the department shall consult with a reasonable number of employees concerning matters of safety and health.

 

(c) Any person who gives advance notice of any inspection, investigation or response to a complaint to be conducted under the authority, and for the purpose of enforcement of this act, without the consent of the department shall, upon conviction, be guilty of a misdemeanor and shall be punished by a fine of not more than ten thousand dollars ($10,000.00) or by imprisonment for not more than six (6) months or both.

 

27-11-109. Investigation of violations; proceedings; confidentiality of trade secrets.

 

(a) The commission or chairman, in their discretion, may make such public or private investigations as they deem necessary to determine whether any person or employer has violated, or is about to violate, any provision of this act, or any rules, regulation, or order hereunder, or to aid in the enforcement of this act, or in the prescribing of rules and regulations hereunder, may require or permit any person to file a statement in writing, under oath or otherwise, as they determine, as to all the facts and circumstances concerning the matter to be investigated and may publish information concerning any violation of this act, rule, regulation or order hereunder.

 

(b) For the purpose of any investigation or proceeding under this act any member of the commission or any officer designated by the chairman may administer oaths and affirmations, subpoena witnesses, and compel their attendance, take evidence and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records, which the commission or its chairman deem relevant or material to the inquiry.

 

(c) In case of contumacy by or refusal to obey a subpoena issued to any person, any Wyoming district court, upon application by the commission or its chairman, may issue to the person an order requiring him to appear before the commission or the officer designated by them, to produce documentary evidence if so ordered, or to give evidence touching the matter under investigation or in question. Failure to obey the order of the court may be punished by the court as contempt of court.

 

(d) When the commission or the department shall discover or have reason to believe that any provision of the employment health and safety laws or any rule is being violated, written notice shall be served upon the person violating the same to comply with the notice within a reasonable time, to be fixed in the notice, which notice shall specify the time to be not more than thirty (30) days, except that such time may be extended for good cause shown. The notice shall specify the violation and shall be posted at or near the site of violation for a period of three (3) days or until the violation is abated, whichever is longer:

 

(i) In fixing the time in such notice and any extension of time, consideration shall be given to the nature of the failure or defect constituting the violation, the probable danger thereof, and the probable length of time and amount of labor required to correct the violation;

 

(ii) If the violation continues after the expiration of the period of time fixed in the notice, including any such extension of time, enforcement in this type of case will be sought by the commission or by the department by filing a complaint and seeking a cease and desist order in the district court;

 

(iii) Proposed penalty amounts shall be clearly stated as part of the notice of violation, but shall be a separate document which need not be posted with the notice of violation;

 

(iv) Nothing in paragraphs (i) and (ii) of this subsection shall be applicable to W.S. 27-11-106(b).

 

(e) No employer shall discharge or in any manner discriminate against any employee because such employee has filed any notice of complaint or has instituted, or caused to be instituted, any proceeding under or related to this act or has testified or is about to testify in any such proceeding, or because of the exercise by such employee on behalf of himself or others any right afforded by this act.

 

(f) All information reported or likewise obtained by the department in connection with any inspection or investigation under this act which contains or which might reveal a trade secret shall be considered as confidential for the purpose of this act: except that such information may be disclosed to other representatives of the department concerned with carrying out this act or when relevant in any proceedings as required under this act. In any such proceedings, the department, the commission, the review board or the court shall issue orders as may be appropriate to protect the confidentiality of trade secrets.

 

27-11-110. Injunction; bond; effect on sovereign immunity.

 

Whenever it appears to the commission that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this act, or any rule, regulation, or order hereunder, the commission, its chairman, or any person so authorized by the commission may bring an action in the name of the state in the district court of any county in which the violation occurred or where it appears a violation may occur to enjoin the acts or practices to enforce compliance with this act, rule or regulation or order hereunder. Upon a proper showing a permanent or temporary injunction or restraining order shall be granted. This action shall not exempt the person so enjoined from penalty, as provided in W.S. 27-11-107, or from enforcement of any other section of the act. The court may not require the commission, its chairman, or any person authorized to bring such action, to post a bond for more than fifty thousand dollars ($50,000.00), and the state of Wyoming does hereby waive sovereign immunity up to and including the amount of the bond the court requires posted in each suit but in no event shall such waiver be more than fifty thousand dollars ($50,000.00) for liability incurred due to wrongfully causing a court to order a person to cease operating his business pursuant to this act.

 

27-11-111. Variances.

 

(a) Any person affected by this act may request a variance to any standard, rule or regulation promulgated under this act.

 

(b) The commission or department shall be empowered to issue a temporary variance when the employer establishes that:

 

(i) He is unable to comply with the standard, rule or regulation because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance;

 

(ii) He has taken all available steps to safeguard his employees against the hazards covered by the standard, rule or regulation;

 

(iii) He has an effective program for coming into compliance with the standard, rule or regulation as quickly as practical; and

 

(iv) He has advised his employees of his request for the variance.

 

(c) A variance may be granted when it shall be determined, after opportunity for an inspection and a hearing, that the employer requesting the variance has demonstrated by a sufficient amount of evidence that the conditions, practices, means, methods, operations or processes used or proposed to be used by the employer will provide employment and a place of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard, rule or regulation.

 

(d) Procedures for the issuing of a variance are set by rule as provided in W.S. 27-11-105.

 

27-11-112. Investigation of health and safety charges and complaints.

 

The department of employment shall investigate charges and complaints of violation of the laws of this state with respect to health and safety and any order, rules, or regulations of the commission made in connection therewith and report them to the commission.

 

27-11-113. Physical examination of employees; religious exemption.

 

Any employer may require an employee to submit to a physical examination before employment or at any time during employment, and shall provide for a physical examination, as deemed necessary, due to exposure or contact with hazards or environmental conditions which may be detrimental to the health of the employee. Nothing in this or any other provision of this act shall be deemed to authorize or require medical examination, immunization or treatment for those who object thereto on religious grounds, except where such is necessary for the protection of the health or safety of others. The results of such examinations shall be furnished only to the department, the employer and, upon request, to the employee and the employee's physician. The employer shall pay for such examination.

 

27-11-114. Limitations.

 

(a) Nothing in this act shall:

 

(i) Limit or restrict the present jurisdiction or authority of the public service commission except employee safety and occupational health;

 

(ii) Supersede or limit the present authority for making rules and regulations pertaining to coal mines;

 

(iii) Affect the rules and regulations now in force until the commission shall adopt rules and regulations pertaining to noncoal mines and until the same shall become effective;

 

(iv) Affect the appointment of the state mine inspector and deputy mine inspectors;

 

(v) Affect the powers and duties of the state mine inspector and deputy mine inspectors as to their present powers and duties until July 1, 1970.