The Vermont Statutes Online

Title 21: Labor

Chapter 3: SAFETY

 

Sub-Chapter 1: Safety Inspections

§§ 101-109. Repealed. 1967, No. 291 (Adj. Sess.), § 1, eff. Jan. 1, 1969.

§§ 111-124. Repealed. 1971, No. 205 (Adj. Sess.), § 7, eff. date, see note set out below.

 

Sub-Chapter 2: Boilers And Pressure Vessels

§§ 141-152. Repealed. 1971, No. 205 (Adj. Sess.), § 7, eff. date, see note set out below.

 

Sub-Chapter 2A: Elevators And Conveyances

§ 141. Purpose; definitions

(a) The purpose of this subchapter is to assure that elevators and other automated conveyances are correctly and safely installed and operated within the state by authorizing and enforcing rules for the design, installation, operation and maintenance of automated people conveyances, and by licensing mechanics and inspectors who work on these conveyances.

(b) For the purposes of this subchapter:

(1) "Board" means the elevator safety review board.

(2) "Certificate of operation" means a document issued by the department indicating that a conveyance has passed the required safety inspection, and the conveyance may be operated for a year from the date the certificate is issued.

(3) "Commissioner" means the commissioner of public safety or the commissioner's designee.

(4) "Conditional certificate of operation" means a document issued by the department that permits a conveyance that is not in compliance with rules adopted under this subchapter, but, after inspection, has been deemed safe for temporary operation to operate for up to 30 days or until the conveyance is in compliance, whichever occurs earlier.

(5) "Conveyance" means an electrically-driven mechanical device that moves people or materials vertically, and includes elevators, escalators, platform lifts and stairway chairlifts.

(6) "Department" means the department of public safety.

(7) "Elevator inspector" means an individual who is licensed by the commissioner to perform safety inspections of newly installed and existing conveyances.

(8) "Elevator mechanic" means an individual who is licensed by the commissioner to erect, construct, install, alter, service, repair and maintain conveyances.

(9) "Public building" has the same meaning as that term is defined in section 2730 of Title 20.

(10) "Lift mechanic" means an individual who is licensed by the commissioner to erect, construct, install, alter, service, repair and maintain platform lifts and stairway chairlifts. (Added 2001, No. 60, § 1, eff. June 16, 2001; amended 2001, No. 151 (Adj. Sess.), § 44b, eff. June 27, 2002; 2005, No. 8, § 6, eff. April 25, 2005.)

§ 142. Conveyances regulated

(a) This subchapter regulates the design, construction, operation, inspection, testing, maintenance, alteration, and repair of the following conveyances and associated parts that are installed in or on a public building:

(1) Hoisting and lowering mechanisms equipped with a car or platform, that moves between two or more landings, including:

(A) Elevators.

(B) Platform lifts and stairway chairlifts.

(C) Power-driven stairways.

(D) Escalators.

(2) Hoisting and lowering mechanisms equipped with a car that serves two or more landings and is designed to carry material, not people, but not including dumbwaiters.

(b) This subchapter does not cover the conveyances that are regulated by the Vermont tramway board or by the rules of the Vermont occupational and safety administration, or by the Federal Mine Safety and Health Act, 30 U.S.C.A. § 801 et seq. (Added 2001, No. 60, § 1, eff. June 16, 2001.)

§ 143. License required

No person shall erect, construct, wire, alter, replace, or maintain any conveyance located in any public building in this state unless the person is licensed as an elevator mechanic, except that person who is licensed as a lift mechanic may erect, construct, wire, alter, replace, or maintain any conveyance located in any public building. An apprentice or helper may perform any of the activities described in this section only when a mechanic licensed under this chapter is physically present and is immediately available to direct and supervise that apprentice or helper. (Added 2001, No. 60, § 1, eff. July 1, 2002; amended 2001, No. 151 (Adj. Sess.), § 44d, eff. June 27, 2002; 2005, No. 8, § 6a, eff. April 25, 2005.)

§ 144. Elevator safety review board; members; duties

(a) The elevator safety review board is established within the department, and shall consist of seven members, one of whom shall be the commissioner or the commissioner's designee, one of whom shall be the commissioner of labor or the commissioner of labor's designee, and five members to be appointed by the governor as follows: one representative from a major elevator manufacturing company; one representative from an elevator servicing company; an owner or manager of a multistoried building, in which a conveyance is installed; an elevator inspector; and an individual who actually installs, maintains and repairs conveyances. The members appointed by the governor shall be appointed for staggered terms of three years, and shall be entitled to compensation and expenses as provided in 32 V.S.A. § 1010.

(b) The board shall:

(1) Adopt rules regarding the following:

(A) Safety standards for the operation, maintenance, servicing, construction, alteration, installation, and inspection of conveyances covered by this subchapter. At a minimum, the board shall adopt rules that include the Safety Code for Elevators and Escalators, ASME A17.1; the Safety Code for Existing Elevators and Escalators, ASME A17.3; the Safety Standards for Platform Lifts and Stairway Chairlifts, ASME A18.1; and Standard for the Qualification of Elevator Inspectors, ASME QEI-1. The board shall amend the rules to include any changes or amendments to these standards within six months after the effective date of the standard changes. The board may adopt rules to modify these standards as the board deems necessary.

(B) Any other rule necessary to implement this subchapter.

(2) Grant variances, provided the variance provides an equal or greater level of public safety. The decision of the board in regard to an application for a variance shall be final.

(c) The board may:

(1) Adopt rules for temporary elevator mechanic licenses in the event of an emergency.

(2) Contract with a national testing service to develop and administer licensing examinations. (Added 2001, No. 60, § 1, eff. June 16, 2001; amended 2007, No. 153 (Adj. Sess.), § 6a.)

§ 145. Elevator mechanic license and lift mechanic license

An individual shall submit to the commissioner a written application for an elevator mechanic or a lift mechanic license on a form provided by the board, accompanied by the required fee. A license shall be granted to an applicant who demonstrates to the satisfaction of the board that the applicant meets the qualifications established by the board. An individual who holds an elevator mechanic license may work on platform lifts and stairway chairlifts without a lift mechanic license. An individual who holds only a lift mechanic license may not work on elevators without an elevator mechanic license. (Added 2001, No. 60, § 1, eff. June 16, 2001; amended 2001, No. 151 (Adj. Sess.), § 44c, eff. June 27, 2002.)

§ 146. Elevator inspector license

An individual shall submit to the commissioner a written application for an elevator inspector license on a form provided by the board, accompanied by the required fee. A license shall be granted to an applicant who demonstrates to the satisfaction of the board that the applicant meets the qualifications established by the board. (Added 2001, No. 60, § 1, eff. June 16, 2001.)

§ 147. Examination not required

A license for elevator mechanic or inspector shall be issued to an applicant, upon application and payment of the required fee, or to an individual who holds a comparable valid license or certification from a state that has equal or more stringent requirements. (Added 2001, No. 60, § 1, eff. June 16, 2001.)

§ 148. Issuance and renewal of licenses; fees

(a) A license issued by the board shall be valid for two years. The board may renew a license, provided the applicant submits a written application for renewal accompanied by the required fee prior to expiration of the license.

(b) Applicants for license renewal shall provide evidence, satisfactory to the board, of completion of eight hours of instruction approved by the board, designed to ensure the continued qualifications of the applicant.

(c) License and renewal fees are as follows:

(1) Elevator mechanic license: $75.00.

(2) Elevator inspector license: $150.00.

(3) Lift mechanic license: $50.00. (Added 2001, No. 60, § 1, eff. June 16, 2001; amended 2001, No. 151 (Adj. Sess.), § 44e, eff. June 27, 2002.)

§ 149. Civil penalties; suspension; revocation of license

After notice and hearing, the board may suspend or revoke a license and assess administrative penalties pursuant to section 156 of this title for any of the following reasons:

(1) Fraud or deceit in obtaining the license.

(2) Failure to notify the department and the owner or lessee of a conveyance of noncompliance of the conveyance with the standards adopted under this subchapter.

(3) Violation of any provisions of this subchapter. (Added 2001, No. 60, § 1, eff. July 1, 2002.)

§ 150. Registration of conveyances

(a) The owner or lessee of a conveyance shall register the conveyance with the department, pursuant to rules adopted by the board. The registration shall include the type, rated load and speed, manufacturer, location, purpose, date of installation, and any additional information the board may require.

(b) The commissioner may, after notice and hearing, assess an administrative penalty of no more than $1,000.00 against a building owner or lessee who fails to register a conveyance as required by this subchapter. (Added 2001, No. 60, §§ 1, 3a, eff. date see notes set out below.)

§ 151. Permits

(a) No conveyance shall be erected, constructed, installed or altered in a public building unless a permit has been obtained from the department before work is commenced. Before a material alteration, as defined by rule, is begun, the conveyance shall conform to rules adopted by the board regulating the alteration. A copy of the permit shall be kept at the construction site at all times while work is in progress.

(b) Each application for a permit shall be accompanied by a fee of $25.00, and copies of specifications and accurately-scaled and fully-dimensioned plans that clearly indicate location of the elevator in the building; the location of the machinery room and the equipment to be installed, relocated or altered; all structural supporting members, including foundations; and a specification of all materials to be used and all loads to be supported or conveyed. The plans and specifications shall be sufficiently complete to illustrate all details of construction and design.

(c) A permit may be revoked for any of the following reasons:

(1) A false statement or a misrepresentation of a material fact in the application, plans, or specifications on which the permit was based.

(2) Failure of the permittee to perform work in accordance with the conditions of the permit, the provisions of the application, plans or specifications, or with the standards required by this subchapter.

(3) Failure of the permit holder to comply with any order issued pursuant to section 154 of this title.

(d) Work shall commence within six months after the date of issuance of a permit, or within a shorter period of time as the commissioner may specify in the permit.

(e) A permit shall expire if work is suspended or abandoned for more than 60 days after work has begun, or a shorter period of time as the commissioner may specify in the permit. For good cause shown, the commissioner may extend this period. (Added 2001, No. 60, § 1, eff. July 1, 2002.)

§ 152. New installations; annual inspections and registrations

(a) A new conveyance shall not be placed in operation until it has been inspected by an elevator inspector other than the installer, and a certificate of operation has been issued.

(b) Every conveyance subject to this subchapter shall be inspected annually by an elevator inspector who may charge a fee for the service as established by the board by rule. Rules adopted by the board under this subsection shall take into account the degree of difficulty required by the inspection, the frequency of use of the conveyance, and the mode of operation of the conveyance, such as cable, traction, hydraulic, light use, or platform lift. The inspector shall notify the department if a conveyance is found to be in violation of this subchapter or any rule adopted under this subchapter.

(c) An elevator inspector shall issue a certificate of operation after the inspector has inspected a new or existing conveyance, and has determined that the conveyance is in compliance with this subchapter. A certificate of operation shall be renewed annually. An owner of a conveyance shall ensure that the required inspections and tests are performed at intervals that comply with rules adopted by the board. Certificates of operation shall be clearly displayed on or in each conveyance.

(d) The department may issue a conditional certificate of operation for a conveyance that is not in complete compliance, provided the conveyance has been inspected and determined to be safe for temporary operation. This conditional certificate of operation shall permit a conveyance to operate for no more than 180 days or until the conveyance is in compliance, whichever occurs first.

(e) The inspector shall submit $25.00 of the fee charged for each inspection to the department for each certificate of operation issued under this subchapter.

(f) As established by the board by rule, an inspector may charge a fee not to exceed $250.00 for each inspection, and this fee shall be subject to the provisions of subchapter 6 of chapter 7 of Title 32.

(g) [Repealed.]  (Added 2001, No. 60, § 1, eff. July 1, 2002; amended 2007, No. 153 (Adj. Sess.), § 6b.)

§ 153. Insurance requirements; license

A licensed elevator inspector shall submit to the department an insurance policy, or certified copy issued by an insurance company authorized to do business in Vermont, that provides general liability coverage in an amount to be determined, by rule. (Added 2001, No. 60, § 1, eff. June 16, 2001.)

§ 154. Enforcement

(a) The commissioner may contract with elevator inspectors to perform random on-site inspections and tests on existing conveyances, conduct periodic inspections and tests to ensure satisfactory performance by licensed individuals, and develop public awareness programs.

(b) If the commissioner finds a violation of this subchapter, the commissioner may:

(1) Order the owner of the premises or the owner's agent and the individuals performing the work to correct or remove the violation.

(2) Suspend or retract the permit.

(3) Order the owner, a public utility or a private party furnishing electricity to the installation not to connect or disconnect electrical energy from the conveyance until the violation is corrected. (Added 2001, No. 60, § 1, eff. June 16, 2001.)

§ 155. Liability

This subchapter shall not be construed to relieve any person that owns, operates, controls, maintains, erects, constructs, installs, alters, inspects, tests or repairs any elevator or other conveyance covered by this subchapter from liability for damages to persons or property caused by any defect in any conveyance. (Added 2001, No. 60, § 1, eff. June 16, 2001.)

§ 156. Penalty

(a) Any owner or lessee who violates any of the provisions of this subchapter shall be fined not more than $1,500.00 for each occurrence.

(b) The commissioner may, after notice and hearing, assess an administrative penalty of not more than $1,000.00 for each violation of this subchapter.

(c) Any person who erects, constructs, wires, alters, replaces, or maintains any conveyance located in any public building in this state without being licensed as required by this subchapter, or who employs an unlicensed person to perform this work, shall be fined not more than $1,000.00 for each offense. (Added 2001, No. 60, § 1, eff. July 1, 2002.)

§ 157. Elevator safety fund; creation

The elevator safety fund is created for the purpose of funding the elevator safety inspection and licensing program. All revenues from fees collected for licensing elevator mechanics and inspectors, and issuing permits and certificates of operation, shall be deposited in the fund. The commissioner, pursuant to an appropriation from the fund, shall request disbursements from the fund by the commissioner of finance and management. The fund shall be maintained by the state treasurer and shall be managed in accordance with the provisions of subchapter 5 of chapter 7 of Title 32. (Added 2001, No. 60, § 1, eff. June 16, 2001.)

 

Sub-Chapter 3: Reports

§§ 191, 192. Repealed. 1971, No. 205 (Adj. Sess.), § 7, eff. date, see note set out below.

 

Sub-Chapter 4: General Provisions

§ 201. Occupational policy

(a) It is the policy of the state of Vermont that in their employment all persons shall be provided by their employers with safe and healthful working conditions at their work place, and that insofar as practicable no employee shall suffer diminished health, functional capacity or life expectancy as a result of his or her work experience.

(b) It is also the policy of the state that practices and procedures prescribed by an employer for performance of work or duties by his or her employees shall not be insofar as practicable, dangerous to the life, body or well being of the employees.

(c) It is the legislative intent that:

(1) The provisions of the Occupational Safety and Health Act of 1970, as enacted by the Congress of the United States of America, which may be administered by a state agency, shall be administered and enforced in this state, by the state.

(2) To effectuate the policy of the state, standards promulgated under the Occupational Safety and Health Act of 1970, enacted by Congress, and as amended at any time, when applicable to employment in the state of Vermont, shall be prescribed in rules made under this subchapter; and

(3) The state of Vermont shall cooperate with the appropriate federal agencies in carrying out the purposes of the Occupational Safety and Health Act of 1970 and the VOSHA Code of the state. (Added 1971, No. 205 (Adj. Sess.), § 1.)

§ 202. General purpose

The purpose of this chapter is to provide efficient implementation of the policy of the state expressed in section 201 of this title. (Added 1971, No. 205 (Adj. Sess.), § 1.)

§ 203. Definitions

As used in this chapter:

(1) "Act" means the Occupational Safety and Health Act of 1970, enacted by the Congress of the United States of America, and rules made thereunder, as amended at any time.

(2) "Commissioner" means the commissioner of labor or designee.

(3) "Department" means the department of labor.

(4) "Director" means the director of occupational health.

(5) "Division" means the division of occupational health.

(6) "Employee" means any person engaged in service to an employer for wages, salary or other compensation, excluding an independent contractor.

(7) "Employer" means a person, as hereinafter defined, who employs one or more persons.

(8) "Person" means a natural person, corporation, partnership, trust, society, club, association or other organization, including municipalities and the state and its instrumentalities.

(9) "Place of employment" means any place where an employee is engaged in performance of his or her work or duties, or which is used in connection with an employee's employment. It includes structures, buildings, machinery, equipment, tools, appliances and materials used in connection with the employment. It also includes land and premises where an employer is carrying on any activity or business involving the use of one or more employees.

(10) "Premises" means land and the structures thereon which contains a place of employment as herein defined.

(11) "Rule" means a rule or regulation.

(12) "VOSHA Code" means subchapters 4 and 5 of this chapter and chapter 28 of Title 18, and the rules adopted thereunder.

(13) "Review board" means the occupational safety and health review board.

(14) "Secretary of Labor" means the Secretary of Labor of the United States of America.

(15) "Secretary" means the secretary of human services. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 17; 1979, No. 121 (Adj. Sess.), § 3; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.)

§ 204. Rules and procedure

(a) Chapter 25 of Title 3, relating to administrative procedure, shall apply to this chapter and the VOSHA Code.

(b) All or part of a printed publication of standards or rules, including but not limited to standards promulgated under the act, may be made a rule or part of a rule under this chapter or the VOSHA Code, by reference in the rule to the printed publication by its title and where it may be procured at the time the rule is promulgated under this chapter. (Added 1971, No. 205 (Adj. Sess.), § 1.)

§ 205. Variances

(a) In cases involving a work place, the secretary of human services, in the case of health standards, and the commissioner in the case of safety standards, may grant a variance from a standard or any provision thereof promulgated in a rule, under the same terms, conditions and criteria as the federal Secretary of Labor may under sections 6(b)(6) and (d) of the Act.

(b) The secretary of human services, in the case of health standards, and the commissioner, in the case of safety standards, may grant a variance, tolerance or exemption to and from any or all provisions of the VOSHA Code as found necessary and proper to avoid serious impairment of the national defense. Such action shall not be taken without the written consent of a federal official authorized to make such variation, tolerance or exemption to and from any or all provisions of the Act. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 8.)

§ 206. Inspections and investigations

(a) The commissioner or the director, or their agents, may enter upon a premise, upon presenting appropriate credentials to the occupant, at reasonable times, for the purpose of inspecting the premises within reasonable limits and in a reasonable manner, to determine whether the provisions of the VOSHA Code and this chapter and the rules adopted thereunder are being observed. If entry is refused the commissioner or the director may apply to a superior judge for an order to enforce the rights given to the commissioner and the director and their agents under this section.

(b) In making inspections and investigations the commissioner or the director, as the case may be, may require the attendance and testimony of witnesses and the production of evidence under oath. Witnesses shall be paid the same fees and mileage as are paid witnesses in the superior courts in criminal cases. In case of a contumacy, failure, or refusal of any person to obey such an order, any superior court within the jurisdiction of which the person is found or resides or transacts business, upon the application by the commissioner, shall have jurisdiction to issue to the person an order requiring him or her to appear to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question. Any failure to obey such order of the court may be punished by said court as a contempt thereof.

(c) No person shall give advance notice of any inspection under the VOSHA Code, without prior authority of the commissioner or the director, which shall be in writing.

(d) Under the VOSHA Code, the secretary of human services and the commissioner shall adopt rules regarding inspections and investigations to conform with the provisions and requirements of the Act.

(e) Subject to regulations issued by the commissioner or secretary, a representative of the employer and a representative authorized by his or her employees shall be given an opportunity to accompany the commissioner or secretary or his or her authorized agent during the physical inspection of any workplace under subsection (a) of this section for the purpose of aiding such inspection. Where there is no authorized employee representative, the commissioner or secretary or his or her authorized agent shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.

(f) Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the commissioner or secretary or his or her authorized agent of the violation or danger. The notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees. A copy of the notice shall be provided the employer or his or her agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his or her name and the names of individual employees referred to therein shall not appear in the copy or on any record published, released, or made available by the commissioner or secretary. If upon receipt of the notification the commissioner or secretary determines there are reasonable grounds to believe that a violation or danger exists, he or she shall make a special inspection in accordance with the provisions of this section as soon as practicable to determine if a violation or danger exists. If the commissioner or secretary determines there are no reasonable grounds to believe that a violation or danger exists, he or she shall notify the employees or representative of the employees in writing of such determination.

(g) Prior to or during any inspection of a workplace, any employees or representative of employees employed in such workplace may notify the commissioner or secretary or any agent of the commissioner or secretary responsible for conducting the inspection, in writing, of any violation of this Code which they have reason to believe exists in such workplace. The commissioner shall, by regulation, establish procedures for informal review of any refusal by a representative of the commissioner to issue a citation with respect to any such alleged violation and shall furnish the employees or representative of employees requesting such review a written statement of the reasons for the commissioner's final disposition of the case. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 214 (Adj. Sess.), § 9.)

§ 207. Trade secrets

All information reported to or otherwise obtained by the commissioner or the director, or their agents, in connection with any inspection or proceeding under this chapter or the VOSHA Code, which contains or might reveal a trade secret referred to in section 1905 of Title 18 of the United States Code shall be considered confidential, except that such information may be disclosed to other officers or employees concerned in carrying out the provisions of this chapter or the VOSHA Code. In any proceeding, the commissioner, director, board or court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets. (Added 1971, No. 205 (Adj. Sess.), § 1.)

§ 208. Imminent danger

(a) Whenever the commissioner finds that any workplace is in violation of any portion of the VOSHA Code or this chapter and that the violation creates a dangerous condition which can be reasonably expected to cause imminent death or serious physical harm, the commissioner may order the workplace or any portion of the workplace to be immediately closed or order that steps be taken to avoid, correct or remove the imminently dangerous conditions. The commissioner may permit the presence of individuals necessary to avoid, correct or remove the imminent danger, or to maintain the capacity of a continuous process operation to resume normal operations without complete cessation of operations, or where a cessation of operations is necessary, to permit it to be accomplished in a safe and orderly manner. On two days' notice to the commissioner, an order issued under this section may be contested by filing a petition in superior court requesting dissolution or modification of the order. In that event, the court shall proceed to hear and to make an expeditious determination.

(b) In the event the court vacates or otherwise invalidates the commissioner's order based upon a finding of wilful misconduct or gross negligence, the court may determine the amount of damages suffered by the employer on account of the issuance of the order and shall enter judgment in that amount for the employer.

(c) Any employer who violates an order of the commissioner issued pursuant to subsection (a) of this section shall be fined not more than $5,000.00 per day.

(d) Notice of orders issued under this section shall be served by certified mail with return receipt requested or in person to all parties who have a recorded interest in the property where land records for the property are recorded, including owners, tenants, mortgagees, attaching creditors, lien holders and public utilities or water companies serving the premises. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 10; 1985, No. 150 (Adj. Sess.), § 1.)

§ 209. Appeals

Except as to matters provided for in subchapter 5 of this chapter, a person aggrieved by an order or action of the commissioner under this chapter, or a rule thereunder, may appeal to the superior court for the order or action within 20 days after the order is issued or the action is taken. In the superior court the matter will be heard de novo. Appeal may be taken to the supreme court from the superior court. The superior court for the county within which the appellant resides or has a place of business shall have jurisdiction. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

§ 210. Penalties

(a) Upon issuance of a citation under this chapter, the review board is authorized to assess civil penalties for grounds provided in this subsection. In assessing civil penalties, the review board shall follow to the degree practicable the federal procedures prescribed in rules promulgated under the Act. The review board shall give due consideration to the appropriateness of the penalty with respect to the size of the business or operation of the employer being assessed, the gravity of the violation, the good faith of the employer, and the history of previous violations. Civil penalties shall be paid to the commissioner for deposit with the state treasurer, and may be recovered in a civil action in the name of the state of Vermont brought in any court of competent jurisdiction. The commissioner shall not reduce the assessed penalties in any fiscal year by more than 50 percent.

(1) Any employer who willfully or repeatedly violates the requirements of this Code or any standard, rule or order promulgated pursuant to this Code or regulations prescribed pursuant to this Code may be assessed a civil penalty of not more than $70,000.00 for each violation, but not less than $5,000.00 for each willful violation.

(2) Any employer who has received a citation for a serious violation of the requirements of this Code, or any standard, rule or order promulgated pursuant to this Code, or of any regulations prescribed pursuant to this Code, shall be assessed a civil penalty of up to $7,000.00 for each violation.

(3) Any employer who has received a citation for a violation of the requirements of this Code, or any standard, rule, or order promulgated pursuant to this Code or of regulations prescribed pursuant to this Code, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $7,000.00 for each such violation.

(4) Any employer who fails to correct a violation for which a citation has been issued within the period permitted for its correction, which period shall not begin to run until the date of the final order of the review board, in the case of any review proceeding under section 226 of this title initiated by the employer in good faith and not solely for delay or avoidance of penalties, may be assessed a civil penalty of not more than  $7,000.00 for each day during which the failure or violation continues.

(5) Any employer who willfully violates any standard, rule or order promulgated pursuant to this Code, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $20,000.00 or by imprisonment for not more than one year, or by both.

(6) Any person who gives advance notice of any inspection to be conducted under this Code, without authority from the commissioner or director or his or her designees, shall, upon conviction, be punished by a fine of not more than $ 1,000.00 or by imprisonment for not more than six months, or by both.

(7) 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 Code shall, upon conviction, be punished by a fine of not more than $10,000.00 or by imprisonment for not more than six months, or by both.

(8) Any employer who violates any of the posting requirements, as prescribed under the provisions of this Code, shall be assessed a civil penalty of up to $7,000.00 for each violation.

(b) For purposes of this section, a serious violation shall be 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. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 11; 1985, No. 150 (Adj. Sess.), § 2; 1991, No. 23, § 1, eff. May 3, 1991; 2003, No. 66, § 74.)

 

Sub-Chapter 5: Occupational Safety And Health

§ 221. State plan and cooperation

The state of Vermont desires to assume responsibility for the development and enforcement of occupational safety and health standards within the state. To that end the commissioner shall submit plans and reports to the appropriate federal official or agency, under the provisions of the Occupational Safety and Health Act of 1970 (PL. 91-596), enacted by the Congress of the United States of America. The department and the division shall cooperate with the appropriate federal agencies in carrying out the purposes of the Act and the VOSHA Code. (Added 1971, No. 205 (Adj. Sess.), § 1.)

§ 222. Application

The VOSHA Code shall apply with respect to employers, employees and employment in or at a work place in the state of Vermont, except that:

(1) Standards applicable to products which are distributed or used in interstate commerce which are different from federal standards for such products shall not be promulgated under the VOSHA Code unless such standards are required by compelling local conditions and do not unduly burden interstate commerce.

(2) Nothing in the VOSHA Code shall be construed to supersede or in any manner affect the workers' compensation laws of this state pursuant to chapters 9 and 11 of this title, or enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of employment. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 12; 1981, No. 165 (Adj. Sess.), § 1.)

§ 223. Duties

(a) Each employer shall furnish to each of his or her employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or significant physical harm to his or her employees; and the employer shall comply with safety and health standards promulgated under the VOSHA Code.

(b) Each employee shall comply with the safety and health standards and all rules, regulations and orders of the VOSHA Code which are applicable to his or her own actions or conduct. (Added 1971, No. 205 (Adj. Sess.), § 1.)

§ 224. Rules and standards

(a) The commissioner shall make and promulgate rules and standards necessary to implement the purposes and duties set forth in this subchapter insofar as they relate to safety, and to enforcement of the VOSHA Code.

(b) The secretary of human services shall make and promulgate rules and standards necessary to implement the purposes of the VOSHA Code and duties thereunder, insofar as they relate to health. The secretary of human services shall furnish the department certified copies of the rules made under this subsection, and the rules shall be published under the rules of the department by the secretary of state.

(c) Any standard promulgated under this section shall prescribe the use of labels or other appropriate forms of warning as are necessary to inform employees of all safety or health hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions for safe use or exposure. Where appropriate, a rule shall prescribe suitable protective clothing, devices or equipment which shall be provided by the employer, and control or technological procedures to be used in connection with the safety or health hazard; and shall provide for monitoring or measuring employee exposure at such locations and intervals and in such manner as may be necessary for the protection of employees.

(d) Where appropriate, a standard promulgated by the secretary of human services may prescribe the type and frequency of medical examinations or other tests which shall be made available by an employer or at the expense of the employer, to employees exposed to health hazards in employment, in order to effectively determine whether the health of the employee is adversely affected by exposure to the hazard. In the event medical examinations are in the nature of research, as determined by the secretary of human services, such examinations may be furnished at the expense of the state. The results of the examinations or tests shall be furnished only to the secretary of human services, the commissioner of health, the director of occupational health, the commissioner of labor, and at the request of the employee, to the employee's physician and the employee.

(e) The commissioner or secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this section, shall set the standard which 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 even if such employee has regular exposure to the hazard dealt with by such standard for the period of his or her working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of safety and health protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other safety and health laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 18; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.)

§ 225. Citations

(a) If, upon inspection or investigation the commissioner or the director, or the agent of either of them, finds that an employer has violated a requirement of the VOSHA Code, the commissioner shall with reasonable promptness issue a citation to the employer and serve it on the employer by certified mail or in the same manner as a summons to the superior court. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provisions of the statute, standard, rule or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. By rule the commissioner shall prescribe procedures for issuance of a notice in lieu of a citation with respect to de minimus violations which have no direct or immediate relationship to safety or health, and for hearing interested parties before a civil penalty is assessed.

(b) Each citation issued under this section, or a copy or copies thereof, shall be prominently posted, as prescribed in rules promulgated by the commissioner, at or near each place a violation referred to in the citation occurred or existed.

(c) A citation issued under this section may be served by an agent of the commissioner, who shall make return in the same manner as sheriffs, deputy sheriffs or constables make after serving a summons.

(d) A citation may not be issued after six months following the inspection or investigation which reveals the violation. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 54, § 69, eff. June 1, 2009.)

§ 226. Enforcement

(a) After issuing a citation under section 225 of this title, the commissioner shall notify the employer by certified mail or by service by an agent, of the penalty, if any, proposed to be assessed under section 210 of this title. The employer shall have 20 days after personal service or receipt of the notice within which to notify the commissioner that he or she wishes to appeal the citation or proposed assessment of penalty, and if no notice is filed by an employee under subsection (c) of this section, the citation and assessment, as proposed, shall be deemed a final order of the review board and not subject to review by any court or agency.

(b) If the commissioner on inspection or investigation finds that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction (which period shall not begin to run until the entry of a final order by the review board in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties, or on the day the citation and assessment becomes final under subsection (a) of this section), the commissioner shall notify the employer by certified mail of such failure and of the penalty proposed to be assessed under section 210 of this title by reason of such failure. The employer shall have 20 days after the receipt of the notice within which to notify the commissioner that he or she wishes to appeal the commissioner's notification or the proposed assessment of penalty. If within 20 days from the receipt of the notification issued by the commissioner, the employer fails to notify the commissioner that he or she intends to appeal the notification or proposed assessment of penalty, the notification and assessment, as proposed, shall be deemed a final order of the review board and not subject to review by any court or agency.

(c) If an employer notifies the commissioner that he or she intends to contest a citation issued under section 225 of this title or notification issued under subsection (a) or (b) of this section, or if, within 20 days of the issuance of a citation issued under section 225 of this title, any employee or representative of employees files a notice with the commissioner alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the commissioner shall immediately advise the review board of such notification and the review board shall afford an opportunity for a hearing. Unless the notice is timely filed, the proposed penalty and, in appropriate cases, the notification of the commissioner shall be deemed a final order of the review board not subject to review by any court or agency.

(d) After hearing an appeal the review board shall thereafter issue an order based on findings of fact, affirming, modifying or vacating the commissioner's citation or proposed penalty, or directing other appropriate relief, and the order shall become final 30 days after its issuance unless judicial review is timely taken under section 227 of this title. The rules of procedure prescribed by the review board shall provide affected employees or their representatives an opportunity to participate as parties in hearings under this subsection. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 13.)

§ 227. Judicial review

(a) Any person adversely affected or aggrieved by an order of the review board may appeal to any superior court for the county in which the violation is alleged to have occurred or where the employer has its principal office. The appeal shall be taken within 30 days following the issuance of such order. The court shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying or setting aside in whole or in part, the order of the review board and enforcing the same to the extent that such order is affirmed or modified. The commencement of proceedings under this subsection shall not, unless ordered by the court, operate as a stay of the order of the review board. No objection that has not been urged before the review board shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the review board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence in the hearing before the review board, the court may order such additional evidence to be taken before the review board and to be made a part of the record. The review board may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the supreme court. Judicial review under this subsection shall be considered expeditiously.

(b) The commissioner may also obtain a review or enforcement of any final order of the review board by filing a petition for such relief in the superior court within the jurisdiction of which the alleged violation occurred or in which the employer has its principal office and the provisions of subsection (a) of this section shall govern such proceedings to the extent applicable. If judicial review is not sought within 30 days after service of the review board's order, the review board's findings of fact and order shall be conclusive in connection with any petition for enforcement which is filed by the commissioner after the expiration of such 30-day period. In any such case, as well as in the case of a noncontested citation or notification by the commissioner, which has become a final order of the review board, the clerk of the court, unless otherwise ordered by the court, shall forthwith enter a decree enforcing the order and shall transmit a copy of such court decree to the commissioner and the employer named in the petition. In any contempt proceeding brought to enforce a court decree entered pursuant to this subsection or subsection (a) of this section, the court may assess the penalties provided in addition to invoking any other available remedies. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 14; 1997, No. 161 (Adj. Sess.), § 16, eff. Jan. 1, 1998.)

§ 228. Reports

(a) Employers shall keep and file all reports and records required under the Act, and any reports and records which the commissioner or the secretary of human services may require by rule.

(b) The commissioner shall make such reports to the Secretary of Labor in such form and containing such information as the Secretary shall from time to time require.

(c)(1) Each employer shall make, keep and preserve, and make available to the Secretary of the U.S. Department of Labor, or the Secretary of Health and Human Services, such records regarding his or her activities relating to the Act as the secretary of the U.S. Department of Labor, in cooperation with the Secretary of Health and Human Services, may prescribe by regulation as necessary or appropriate for the enforcement of the Act or for developing information regarding the causes and prevention of occupational accidents and illnesses. In order to carry out the provisions of this subdivision such regulations may include provisions requiring employers to conduct periodic inspections. The commissioner shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this Code, including the provisions of applicable standards.

(2) The commissioner in cooperation with the secretary, shall issue regulations requiring employees to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under section 224 of this title. Such regulations shall provide employees or their representative with an opportunity to observe such monitoring or measuring, and to have access to the records thereof. Such regulations shall also make appropriate provision for each employee or former employee to have access to such records as will indicate his or her own exposure to toxic materials or harmful physical agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels which exceed those prescribed by an applicable occupational safety and health standard promulgated under section 224 of this title and shall inform any employee who is being thus exposed of the corrective action being taken. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 19.)

§ 229. Repealed. 2009, No. 135 (Adj. Sess.), § 26(9).

§ 230. Occupational safety and health review board

(a) An occupational safety and health review board is created. It shall consist of three members who shall be appointed by the governor, with the advice and consent of the senate. The members of the board shall be appointed for terms of six years, but initially in a manner so that one term expires in two years, one term in four years, and one term in six years. Thereafter, biennially, in the month of February, with the advice and consent of the senate, the governor shall appoint a person as a member of such board for the term of six years, whose term of office shall commence on March 1 of the year in which such appointment is made. The governor, biennially, shall designate a member of such board to be its chair.

(b) With the approval of the secretary of administration, the board may employ such employees as it deems necessary, and may without such approval employ and remove a clerk and a reporter for taking and transcribing testimony in hearings before it and such hearing judges as it deems necessary to hear appeals on behalf of the board. Compensation for employees of the board shall be fixed by the commissioner of human resources. The hearing judge appointed by the board shall hear, and make a determination upon, any proceeding instituted before the board and any motion in connection therewith, assigned to such hearing judge by the chair of the board, and shall make a report of any such determination which constitutes his final disposition of the proceedings. The report of the hearing judge shall become the final order of the board within 30 days after such report by the hearing examiner, unless within such period any board member has directed that such report shall be reviewed by the board.

(c) Every official act of the board shall be entered on record, and its hearings and records shall be open to the public.

(d) The board is authorized to make such rules as are necessary for the orderly transaction of its proceedings. Unless the board has adopted a different rule, its proceedings shall be in accordance with the rules promulgated by the supreme court for the superior courts.

(e) The office of the board shall be located in Montpelier, but proceedings shall be held at places within the state convenient to persons appearing before it.

(f) The compensation of members of the board shall be fixed by the commissioner of human resources.

(g) The board shall be attached to the governor's office for administrative purposes. (Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 214 (Adj. Sess.), § 15; 1981, No. 34, § 1; 2003, No. 156 (Adj. Sess.), § 15.)

§ 231. Employee rights

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

(b) Any employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of this section may, within 30 days after such violation occurs, file a complaint with the commissioner alleging such discrimination. Upon receipt of such complaint, the commissioner shall cause such investigation to be made as he or she deems appropriate. If upon such investigation, the commissioner determines that the provisions of this section have been violated, he or she shall bring an action in any appropriate state court against such person. In any such action, the state courts shall have jurisdiction, for cause shown to restrain violations of subsection (a) of this section and order all appropriate relief including rehiring or reinstatement of the employee to his or her former position with back pay.

(c) Within 90 days of the receipt of a complaint filed under this section, the commissioner shall notify the complainant of his or her determination under subsection (b) of this section. (Added 1973, No. 214 (Adj. Sess.), § 20.)