Chapter 4167: PUBLIC EMPLOYMENT RISK REDUCTION PROGRAM

4167.01 Public employment risk reduction program definitions.

As used in this chapter:

(A) "Public employer" means any of the following:

(1) The state and its instrumentalities;

(2) Any political subdivisions and their instrumentalities, including any county, county hospital, municipal corporation, city, village, township, park district, school district, state institution of higher learning, public or special district, state agency, authority, commission, or board;

(3) Any other branch of public employment not mentioned in division (A)(1) or (2) of this section.

(B) "Public employee" means any individual who engages to furnish services subject to the direction and control of a public employer, including those individuals working for a private employer who has contracted with a public employer and over whom the national labor relations board has declined jurisdiction. "Public employee" does not mean any of the following:

(1) A firefighter, an emergency medical technician-basic, an emergency medical technician-intermediate, a paramedic, or a peace officer employed by a public employer as defined in division (A)(2) of this section, any member of the organized militia ordered to duty by state authority pursuant to Chapter 5923. of the Revised Code, or a firefighter, an emergency medical technician-basic, an emergency medical technician-intermediate, or a paramedic employed by a private employer that is organized as a nonprofit fire company or life squad that contracts with a public employer to provide fire protection or emergency medical services;

(2) Any person employed as a correctional officer in a county or municipal corporation correctional institution, whether the county or municipal corporation solely or in conjunction with each other operates the institution;

(3) Any person who engages to furnish services subject to the direction and control of a public employer but does not receive compensation, either directly or indirectly, for those services;

(4) Any forest officer, park officer, watercraft officer, wildlife officer, or preserve officer.

(C) "Public employee representative" means an employee organization certified by the state employment relations board under section 4117.05 of the Revised Code as the exclusive representative of the public employees in a bargaining unit.

(D) "Employment risk reduction standard" means a 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 and healthful employment and places of employment.

(E) "Ohio employment risk reduction standard" means any risk reduction standard adopted or issued under this chapter.

(F) "Undue hardship" means any requirement imposed under this chapter or a rule or order issued thereunder that would require a public employer to take an action with significant difficulty or expense when considered in light of all of the following factors:

(1) The nature and cost of the action required under this chapter;

(2) The overall financial resources of the public employer involved in the action;

(3) The number of persons employed by the public employer at the particular location where the action may be required;

(4) The effect on expenses and resources or the impact otherwise of the action required upon the operations of the public employer at the location where the action may be required;

(5) The overall size of the public employer with respect to the number of its public employees;

(6) The number, type, and location of the public employer's operations, including the composition, structure, and functions of the workforce of the public entity;

(7) The geographic separateness, administrative, or fiscal relationship of the public employer's operations to the whole public employer.

Effective Date: 10-05-2000

4167.02 Director to enforce program - public employment risk reduction advisory commission.

(A) The administrator of worker's compensation shall operate and enforce the public employment risk reduction program created by this chapter.

(B) The administrator shall do all of the following:

(1) Adopt rules, with the advice and consent of the bureau of workers' compensation board of directors and in accordance with Chapter 119. of the Revised Code, for the administration and enforcement of this chapter, including rules covering standards the administrator shall follow in issuing an emergency temporary Ohio employment risk reduction standard under section 4167.08 of the Revised Code and a temporary variance and a variance from an Ohio employment risk reduction standard or part thereof under section 4167.09 of the Revised Code;

(2) Do all things necessary and appropriate for the administration and enforcement of this chapter.

(C) In carrying out the responsibilities of this chapter, the administrator may use, with the consent of any federal, state, or local agency, the services, facilities, and personnel of such agency, with or without reimbursement, and may retain or contract with experts, consultants, and organizations for services or personnel on such terms as the administrator determines appropriate.

Effective Date: 07-01-2000; 06-21-2005; 2007 HB100 09-10-2007

4167.03 Construction and interpretation.

(A) Except as otherwise provided in this chapter, no provision of this chapter shall be construed to supersede or in any manner affect any workers' compensation law or to enlarge or diminish or affect in any other manner the common law, statutory rights, duties, or liabilities of public employers or public employees under any law with respect to injuries, diseases, or death of public employees arising out of, or in the course of, employment.

(B) Nothing in this chapter shall be construed to enlarge or diminish or affect in any other manner the common law or statutory rights of public employers, contractors, or subcontractors to enter into or enforce indemnification, hold harmless, or guarantee performance agreements among themselves as those agreements existed prior to June 30, 1993.

Effective Date: 04-20-1993

4167.04 Duty of public employer to provide safe place of employment.

(A) Each public employer shall:

(1) Furnish to each of his public employees employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to his public employees;

(2) Comply with Ohio employment risk reduction standards, rules, and orders adopted or issued pursuant to this chapter.

(B) Notwithstanding this section or any other provision in this chapter to the contrary, no public employer is required to take any action under this chapter that would cause an undue hardship upon that public employer, unless the action is required to prevent imminent danger of death or serious harm to the public employee.

Effective Date: 04-20-1993

4167.05 Compliance with employment risk reduction standards, rules, and orders.

Each public employee shall:

(A) Comply with Ohio employment risk reduction standards, rules, and orders adopted or issued pursuant to this chapter which are applicable to the public employee's actions and conduct;

(B) Comply with safety rules the public employer establishes for the purpose of fulfilling compliance with Ohio employment risk reduction standards, rules, or orders adopted or issued pursuant to this chapter. All such rules the public employer adopts shall be reasonable as determined in accordance with the purposes and objectives of this chapter.

Effective Date: 04-20-1993

4167.06 Right to refuse to work under unsafe conditions.

(A) A public employee acting in good faith has the right to refuse to work under conditions that the public employee reasonably believes present an imminent danger of death or serious harm to the public employee, provided that such conditions are not such as normally exist for or reasonably might be expected to occur in the occupation of the public employee. A public employer shall not discriminate against a public employee for a good faith refusal to perform assigned tasks if the public employee has requested that the public employer correct the hazardous conditions but the conditions remain uncorrected, there was insufficient time to eliminate the danger by resorting to the enforcement methods provided in this chapter, and the danger was one that a reasonable person under the circumstances then confronting the public employee would conclude is an imminent danger of death or serious physical harm to the public employee. A public employee who has refused in good faith to perform assigned tasks and who has not been reassigned to other tasks by the public employer shall, in addition to retaining a right to continued employment, receive full compensation for the tasks that would have been performed. If the public employer reassigns the public employee, the public employer shall pay the public employee's full compensation as if the public employee were not reassigned.

(B) A public employee who exercises the right to refuse to work under division (A) of this section shall notify by a written statement that is signed by the public employee, as soon as practicable after exercising that right, the administrator of workers' compensation of the condition that presents an imminent danger of death or serious harm to the public employee. Upon receipt of the notification, the administrator or the administrator's designee immediately shall inspect the premises of the public employer. The administrator and the administrator's designee shall comply with section 4167.10 of the Revised Code in conducting the inspection and investigation and in issuing orders and citations.

(C) A public employee who refuses to perform assigned tasks under division (A) of this section and fails to meet all of the conditions set forth in that division for the refusal is subject to any disciplinary action provided by law or agreement between the public employer and public employee for a refusal to work, including, but not limited to, suspension, nonpayment of wages for the duration of the refusal to work, and discharge.

Effective Date: 07-01-2000; 06-21-2005

4167.07 Commission to adopt rules for employment risk reduction standards.

(A) The administrator of workers' compensation, with the advice and consent of the bureau of workers' compensation board of directors, shall adopt rules that establish employment risk reduction standards. Except as provided in division (B) of this section, in adopting these rules, the administrator shall do both of the following:

(1) By no later than July 1, 1994, adopt as a rule and an Ohio employment risk reduction standard every federal occupational safety and health standard then adopted by the United States secretary of labor pursuant to the "Occupational Safety and Health Act of 1970," 84 Stat. 1590, 29 U.S.C.A. 651 , as amended;

(2) By no later than one hundred twenty days after the United States secretary of labor adopts, modifies, or revokes any federal occupational safety and health standard, by rule do one of the following:

(a) Adopt the federal occupational safety and health standard as a rule and an Ohio employment risk reduction standard;

(b) Amend the existing rule and Ohio employment risk reduction standard to conform to the modification of the federal occupational safety and health standard;

(c) Rescind the existing rule and Ohio employment risk reduction standard that corresponds to the federal occupational safety and health standard the United States secretary of labor revoked.

(B) The administrator, with the advice and consent of the bureau of workers' compensation board of directors, may decline to adopt any federal occupational safety and health standard as a rule and an Ohio employment risk reduction standard or to modify or rescind any existing rule and Ohio employment risk reduction standard to conform to any federal occupational safety and health standard modified or revoked by the United States secretary of labor or may adopt as a rule and an Ohio employment risk reduction standard any occupational safety and health standard that is not covered under the federal law or that differs from one adopted or modified by the United States secretary of labor, if the administrator determines that existing rules and Ohio employment risk reduction standards provide protection at least as effective as that which would be provided by the existing, new, or modified federal occupational safety and health standard or if the administrator determines that local conditions warrant a different standard from that of the existing federal occupational safety and health standard or from standards the United States secretary of labor adopts, modifies, or revokes.

(C) In adopting, modifying, or rescinding any rule or Ohio employment risk reduction standard dealing with toxic materials or harmful physical agents, the administrator, with the advice and consent of the bureau of workers' compensation board of directors, shall do all of the following:

(1) Set the employment risk reduction standard to most adequately assure, to the extent technologically feasible and on the basis of the best available evidence, that no public employee will suffer material impairment of health or functional capacity as a result of the hazards dealt with by the rule or Ohio employment risk reduction standard for the period of the public employee's working life;

(2) Base the development of these rules and Ohio employment risk reduction standards on research, demonstrations, experiments, and other information as is appropriate and upon the technological feasibility of the rule and standard, using the latest available scientific data in the field and the experience gained in the workplace under this chapter and other health and safety laws, to establish the highest degree of safety and health for the public employee;

(3) Whenever practicable, express the rule and Ohio employment risk reduction standard in terms of objective criteria and of the performance desired;

(4) Prescribe the use of labels or other appropriate forms of warning as are necessary to ensure that public employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions of safe use or exposure where appropriate;

(5) Prescribe suitable protective equipment and control procedures to be used in connection with the hazards;

(6) Provide for measuring or monitoring public employee exposure in a manner necessary for the protection of the public employees;

(7) Where appropriate, prescribe the type and frequency of medical examinations or other tests the public employer shall make available, at the cost of the public employer, to the public employees exposed to the hazards in order to determine any adverse effect from the exposure.

(D) In determining the priority for adopting rules and Ohio employment risk reduction standards under this section, the administrator shall give due regard to the urgency of need and recommendations of the department of health regarding that need for mandatory employment risk reduction standards for particular trades, crafts, occupations, services, and workplaces.

(E)

(1) Except for rules adopted under division (A) of this section, the administrator, with the advice and consent of the bureau of workers' compensation board of directors, shall adopt all rules under this section in accordance with Chapter 119. of the Revised Code, provided that notwithstanding that chapter, the administrator may delay the effective date of any rule or Ohio employment risk reduction standard for the period the administrator determines necessary to ensure that affected public employers and public employees will be informed of the adoption, modification, or rescission of the rule and Ohio employment risk reduction standard and have the opportunity to familiarize themselves with the specific requirements of the rule and standard. In no case, however, shall the administrator delay the effective date of a rule adopted pursuant to Chapter 119. of the Revised Code in excess of ninety days beyond the otherwise required effective date.

(2) In regard to the rules for which the administrator does not have to comply with Chapter 119. of the Revised Code, the administrator shall file two certified copies of the rules and Ohio employment risk reduction standards adopted with the secretary of state and the director of the legislative service commission.

Effective Date: 04-20-1993; 06-21-2005; 2007 HB100 09-10-2007

4167.08 Issuance of emergency temporary Ohio employment risk reduction standard.

(A) In the event of an emergency or unusual situation, the administrator of workers' compensation shall issue an emergency temporary Ohio employment risk reduction standard to take immediate effect upon publication in newspapers of general circulation in Cleveland, Columbus, Cincinnati, and Toledo if the administrator finds both of the following:

(1) Public employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards;

(2) The emergency temporary Ohio employment risk reduction standard is necessary to protect employees from the danger.

(B)

(1) Except as provided in division (B)(2) of this section an emergency temporary Ohio employment risk reduction standard issued by the administrator under division (A) of this section shall be in effect no longer than fifteen days, unless the bureau of workers' compensation board of directors approves the emergency temporary Ohio employment risk reduction standard as issued by the administrator, in which case, the emergency temporary Ohio employment risk reduction standard shall be in effect no longer than one hundred twenty days after the date the administrator issues it.

(2) The administrator may renew an emergency temporary Ohio employment risk reduction standard that has been approved by the board for an additional time period not to exceed one hundred days if the administrator finds that the conditions identified in divisions (A)(1) and (2) of this section continue to exist.

On or before the expiration date of the emergency temporary Ohio employment risk reduction standard or renewal thereof, if the conditions identified in divisions (A)(1) and (2) of this section continue to exist, the administrator, with the advice and consent of the board, shall adopt a permanent Ohio employment risk reduction standard pursuant to section 4167.07 of the Revised Code as a rule to replace the emergency temporary Ohio employment risk reduction standard.

Effective Date: 07-01-2000; 06-21-2005; 2007 HB100 09-10-2007

4167.09 Application for temporary variance or for variance from standard.

(A) Any public employer affected by a proposed rule or Ohio employment risk reduction standard or any provision of a standard proposed under section 4167.07 or 4167.08 of the Revised Code may apply to the administrator of workers' compensation for an order granting a temporary variance from the standard or provision. The application for the order and any extension of the order shall contain a reasonable application fee, as determined by the bureau of workers' compensation board of directors, and all of the following information:

(1) A specification of the Ohio public employment risk reduction standard or provision of it from which the public employer seeks the temporary variance;

(2) A representation by the public employer, supported by representations from qualified persons having firsthand knowledge of the facts represented, that the public employer is unable to comply with the Ohio employment risk reduction standard or provision of it and a detailed statement of the reasons for the inability to comply;

(3) A statement of the steps that the public employer has taken and will take, with dates specified, to protect employees against the hazard covered by the standard;

(4) A statement of when the public employer expects to be able to comply fully with the Ohio employment risk reduction standard and what steps the public employer has taken and will take, with dates specified, to come into full compliance with the standard;

(5) A certification that the public employer has informed the public employer's public employees of the application by giving a copy of the application to the public employee representative, if any, and by posting a statement giving a summary of the application and specifying where a copy of the application may be examined at the place or places where notices to public employees are normally posted, and by any other appropriate means of public employee notification. The public employer also shall inform the public employer's public employees of their rights to a hearing under section 4167.15 of the Revised Code. The certification also shall contain a description of how public employees have been informed of the application and of their rights to a hearing.

(B) The administrator shall issue an order providing for a temporary variance if the public employer files an application that meets the requirements of division (A) of this section and establishes that all of the following pertaining to the public employer are true:

(1) The public employer is unable to comply with the Ohio employment risk reduction standard or a provision of it by its effective date because of the unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the Ohio employment risk reduction standard or provision of it or because necessary construction or alteration of facilities cannot be completed by the effective date of the standard.

(2) The public employer is taking all available steps to safeguard the public employer's public employees against the hazards covered by the Ohio employment risk reduction standard.

(3) The public employer has an effective program for coming into compliance with the Ohio employment risk reduction standard as quickly as practicable.

(4) The granting of the variance will not create an imminent danger of death or serious physical harm to public employees.

(C)

(1) If the administrator issues an order providing for a temporary variance under division (B) of this section, the administrator shall prescribe the practices, means, methods, operations, and processes that the public employer must adopt and use while the order is in effect and state in detail the public employer's program for coming into compliance with the Ohio employment risk reduction standard. The administrator may issue the order only after providing notice to affected public employees and their public employee representative, if any, and an opportunity for a hearing pursuant to section 4167.15 of the Revised Code, provided that the administrator may issue one interim order granting a temporary order to be effective until a decision on a hearing is made. Except as provided in division (C)(2) of this section, no temporary variance may be in effect for longer than the period needed by the public employer to achieve compliance with the Ohio employment risk reduction standard or one year, whichever is shorter.

(2) The administrator may renew an order issued under division (C) of this section up to two times provided that the requirements of divisions (A), (B), and (C)(1) of this section and section 4167.15 of the Revised Code are met and the public employer files an application for renewal with the administrator at least ninety days prior to the expiration date of the order.

(D) Any public employer affected by an Ohio employment risk reduction standard or any provision of it proposed, adopted, or otherwise issued under section 4167.07 or 4167.08 of the Revised Code may apply to the administrator for an order granting a variance from the standard or provision. The administrator shall provide affected public employees and their public employee representative, if any, notice of the application and shall provide an opportunity for a hearing pursuant to section 4167.15 of the Revised Code. The administrator shall issue the order granting the variance if the public employer files an application that meets the requirements of division (B) of this section, and after an opportunity for a hearing pursuant to section 4167.15 of the Revised Code, and if the public employer establishes to the satisfaction of the administrator that the conditions, practices, means, methods, operations, or processes used or proposed to be used by the public employer will provide employment and places of employment to the public employer's public employees that are as safe and healthful as those that would prevail if the public employer complied with the Ohio employment risk reduction standard. The administrator shall prescribe in the order granting the variance the conditions the public employer must maintain, and the practices, means, methods, operations, and processes the public employer must adopt and utilize in lieu of the Ohio employment risk reduction standard that would otherwise apply. The administrator may modify or revoke the order upon application of the public employer, public employee, or public employee representative, or upon the administrator's own motion in the manner prescribed for the issuance of an order under this division at any time during six months after the date of issuance of the order.

Effective Date: 10-05-2000; 12-30-2004; 06-21-2005; 06-27-2005; 2007 HB100 09-10-2007

4167.10 Inspection and investigation of workplaces.

(A) In order to carry out the purposes of this chapter, the administrator of workers' compensation or the administrator's designee shall, as provided in this section, inspect and investigate any plant, facility, establishment, construction site, or any other area, workplace, or environment where work is being performed by a public employee of a public employer, and any place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and question privately any public employer, administrator, department head, operator, agent, or public employee. The authority to inspect and investigate includes the taking of environmental samples, the taking and obtaining of photographs related to the purposes of the inspection or investigation, the examination of records required to be kept under section 4167.11 of the Revised Code and other documents and records relevant to the inspection and investigation, the issuance of subpoenas, and the conducting of tests and other studies reasonably calculated to serve the purposes of implementing and enforcing this chapter. Except as provided in this section, the administrator or the administrator's designee shall conduct inspections and investigations only pursuant to a request to do so by a public employee or public employee representative, or the notification the administrator receives pursuant to division (B) of section 4167.06 of the Revised Code and only if the administrator or the administrator's designee complies with this section. The administrator or the administrator's designee shall conduct all requested or required inspections within a reasonable amount of time following receipt of the request or notification.

(B)

(1) Any public employee or public employee representative who believes that a violation of an Ohio employment risk reduction standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving written notice to the administrator or the administrator's designee of the violation or danger. The notice shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the public employee or public employee representative. The names of individual public employees making the notice or referred to therein shall not appear in the copy provided to the public employer pursuant to division (B)(2) of this section and shall be kept confidential.

(2) If, upon receipt of a notification pursuant to division (B)(1) of this section, the administrator determines that there are no reasonable grounds to believe that a violation or danger exists, the administrator shall inform the public employee or public employee representative in writing of the determination. If, upon receipt of a notification, the administrator determines that there are reasonable grounds to believe that a violation or danger exists, the administrator shall, within one week, excluding Saturdays, Sundays, and any legal holiday as defined in section 1.14 of the Revised Code, after receipt of the notification, notify the public employer, by certified mail, return receipt requested, of the alleged violation or danger. The notice provided to the public employer or the public employer's agent shall contain a copy of the notice provided to the administrator by the public employee or the public employee representative under division (B)(1) of this section and shall inform the public employer of the alleged violation or danger and that the administrator or the administrator's designee will investigate and inspect the public employer's workplace as provided in this section. The public employer must respond to the administrator, in a method determined by the administrator, concerning the alleged violation or danger, within thirty days after receipt of the notice. If the public employer does not correct the violation or danger within the thirty-day period or if the public employer fails to respond within that time period, the administrator or the administrator's designee shall investigate and inspect the public employer's workplace as provided in this section. The administrator or the administrator's designee shall not conduct any inspection prior to the end of the thirty-day period unless requested or permitted by the public employer. The administrator may, at any time upon the request of the public employer, inspect and investigate any violation or danger alleged to exist at the public employer's place of employment.

(3) The authority of the administrator or the administrator's designee to investigate and inspect a premises pursuant to a public employee or public employee representative notification is not limited to the alleged violation or danger contained in the notification. The administrator or the administrator's designee may investigate and inspect any other area of the premises where there is reason to believe that a violation or danger exists. In addition, if the administrator or the administrator's designee detects any obvious or apparent violation at any temporary place of employment while en route to the premises to be inspected or investigated, and that violation presents a substantial probability that the condition or practice could result in death or serious physical harm, the administrator or the administrator's designee may use any of the enforcement mechanisms provided in this section to correct or remove the condition or practice.

(4) If, during an inspection or investigation, the administrator or the administrator's designee finds any condition or practice in any place of employment that presents a substantial probability that the condition or practice could result in death or serious physical harm, after notifying the employer of the administrator's intent to issue an order, the administrator shall issue an order, or the administrator's designee shall issue an order after consultation either by telephone or in person with the administrator and upon the recommendation of the administrator, which prohibits the employment of any public employee or any continuing operation or process under such condition or practice until necessary steps are taken to correct or remove the condition or practice. The order shall not be effective for more than fifteen days, unless a court of competent jurisdiction otherwise orders as provided in section 4167.14 of the Revised Code.

(C) In making any inspections or investigations under this chapter, the administrator or the administrator's designee may administer oaths and require, by subpoena, the attendance and testimony of witnesses and the production of evidence under oath. Witnesses shall receive the fees and mileage provided for under section 119.094 of the Revised Code. In the case of contumacy, failure, or refusal of any person to comply with an order or any subpoena lawfully issued, or upon the refusal of any witness to testify to any matter regarding which the witness may lawfully be interrogated, a judge of the court of common pleas of any county in this state, on the application of the administrator or the administrator's designee, shall issue an order requiring the person to appear and to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question. The court may punish any failure to obey the order of the court as a contempt thereof.

(D) If, upon inspection or investigation, the administrator or the administrator's designee believes that a public employer has violated any requirement of this chapter or any rule, Ohio employment risk reduction standard, or order adopted or issued pursuant thereto, the administrator or the administrator's designee shall, with reasonable promptness, issue a citation to the public employer. The citation shall be in writing and describe with particularity the nature of the alleged violation, including a reference to the provision of law, Ohio employment risk reduction standard, rule, or order alleged to have been violated. In addition, the citation shall fix a time for the abatement of the violation, as provided in division (H) of this section. The administrator may prescribe procedures for the issuance of a notice with respect to minor violations and for enforcement of minor violations that have no direct or immediate relationship to safety or health.

(E) Upon receipt of any citation under this section, the public employer shall immediately post the citation, or a copy thereof, at or near each place an alleged violation referred to in the citation occurred.

(F) The administrator may not issue a citation under this section after the expiration of six months following the final occurrence of any violation.

(G) If the administrator issues a citation pursuant to this section, the administrator shall mail the citation to the public employer by certified mail, return receipt requested. The public employer has fourteen days after receipt of the citation within which to notify the administrator that the employer wishes to contest the citation. If the employer notifies the administrator within the fourteen days that the employer wishes to contest the citation, or if within fourteen days after the issuance of a citation a public employee or public employee representative files notice that the time period fixed in the citation for the abatement of the violation is unreasonable, the administrator shall hold an adjudication hearing in accordance with Chapter 119. of the Revised Code.

(H) In establishing the time limits in which a public employer must abate a violation under this section, the administrator shall consider the costs to the public employer, the size and financial resources of the public employer, the severity of the violation, the technological feasibility of the public employer's ability to comply with requirements of the citation, the possible present and future detriment to the health and safety of any public employee for failure of the public employer to comply with requirements of the citation, and such other factors as the administrator determines appropriate. The administrator may, after considering the above factors, permit the public employer to comply with the citation over a period of up to two years and may extend that period an additional one year, as the administrator determines appropriate.

(I) Any public employer may request the administrator to conduct an employment risk reduction inspection of the public employer's place of employment. The administrator or the administrator's designee shall conduct the inspection within a reasonable amount of time following the request. Neither the administrator nor any other person may use any information obtained from the inspection for a period not to exceed three years in any proceeding for a violation of this chapter or any rule or order issued thereunder nor in any other action in any court in this state.

Effective Date: 07-01-2000; 06-21-2005; 2008 HB525 07-01-2009

4167.11 Program of collection, compilation, and analysis of employment risk reduction statistics.

(A) In order to further the purposes of this chapter, the administrator of workers' compensation shall develop and maintain, for public employers and public employees, an effective program of collection, compilation, and analysis of employment risk reduction statistics.

(B) To implement and maintain division (A) of this section, the administrator, with the advice and consent of the bureau of workers' compensation board of directors, shall adopt rules in accordance with Chapter 119. of the Revised Code that extend to all of the following:

(1) Requiring each public employer to make, keep, and preserve, and make available to the administrator, reports and records regarding the public employer's activities, as determined by the rule that are necessary or appropriate for the enforcement of this chapter or for developing information regarding the causes and prevention of occupational accidents and illnesses. The rule shall prescribe which of these reports and records shall or may be furnished to public employees and public employee representatives.

(2) Requiring every public employer, through posting of notices or other appropriate means, to keep their public employees informed of public employees' rights and obligations under this chapter, including the provisions of applicable Ohio employment risk reduction standards;

(3) Requiring public employers to maintain accurate records of public employee exposure to potentially toxic materials, carcinogenic materials, and harmful physical agents that are required to be monitored or measured under rules adopted under the guidelines of division (C) of section 4167.07 of the Revised Code. The rule shall provide public employees or public employee representatives an opportunity to observe the monitoring or measuring, and to have access on request to the records thereof, and may provide public employees or public employee representatives an opportunity to participate in and to undertake their own monitoring or measuring. The rules also shall permit each current or former public employee to have access to the records that indicate their own exposure to toxic materials, carcinogenic materials, or harmful agents.

(C) The administrator shall obtain any information under division (B) of this section with a minimum burden upon the public employer and shall, to the maximum extent feasible, reduce unnecessary duplication of efforts in obtaining the information.

Effective Date: 07-01-2000; 06-21-2005; 2007 HB100 09-10-2007

4167.12 Confidential trade secrets.

All information reported to or otherwise obtained by the administrator of workers' compensation or the administrator's designee in connection with any investigation, inspection, or proceeding under this chapter that reveals a trade secret of any person is confidential, except that the information may be disclosed to other agents or authorized representatives of the administrator concerned with fulfilling the requirements of this chapter, or when relevant, to any proceeding under this chapter. In any proceeding, the administrator or the court shall issue orders as appropriate to protect the confidentiality of trade secrets.

Effective Date: 07-01-2000; 06-21-2005

4167.13 Prohibiting retaliation by employer.

(A) No public employer shall discharge or in any manner discriminate against any public employee because the public employee, in good faith, files any complaint or institutes any proceeding under or related to this chapter, or testifies or is about to testify in any proceeding, or because of the exercise by the public employee, on his own behalf or on the behalf of others, of any right afforded under this chapter.

(B) Any public employee who believes he has been discharged or otherwise discriminated against by any public employer in violation of division (A) of this section may elect any one of the following remedies:

(1) File, within sixty days after the violation occurs, a complaint with the state personnel board of review. The state personnel board of review may restrain violations of division (A) of this section and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay and reasonable interest thereon.

(2) Pursue any grievance or appeal procedure provided for an action based upon a violation of division (A) of this section under a collective bargaining agreement entered into pursuant to Chapter 4117. of the Revised Code;

(3) Pursue any grievance or appeal procedure provided for an action based upon a violation of division (A) of this section under a municipal or county charter;

(4) Pursue any grievance or appeal procedure provided for an action based upon a violation of division (A) of this section under section 124.34 of the Revised Code;

(5) Pursue any grievance or appeal procedure provided for an action based upon a violation of division (A) of this section under any other grievance or appeal procedure or any other right or remedy provided by law.

(C) An employee may elect only one of the remedies provided for in divisions (B)(1) to (5) of this section and is barred from asserting an action based upon a violation of division (A) under any other remedy provided in division (B) of this section.

(D) Nothing in this section shall be construed as limiting a public employer's right to take any action as provided in division (C) of section 4167.06 of the Revised Code.

Effective Date: 04-20-1993

4167.14 Injunctive relief.

(A) Any court of common pleas has jurisdiction, upon petition of the administrator of workers' compensation, to restrain any conditions or practices in any places of employment that present a danger that could reasonably be expected to cause death or serious harm or contribute significantly to occupationally related illness immediately or before the imminence of the danger can be eliminated through the enforcement procedures provided in this chapter. Any order issued under this section may require that steps be taken as necessary to avoid, correct, or remove the imminent danger and prohibit the employment or presence of any individual in locations or under conditions where the imminent danger exists, except individuals whose presence is necessary to avoid, correct, or remove the imminent danger.

(B) Upon the filing of a petition under division (A) of this section, the court of common pleas may grant injunctive relief or a temporary restraining order pending the outcome of an enforcement proceeding pursuant to this chapter, except that no temporary restraining order issued without notice is effective for a period longer than five calendar days.

(C) If the administrator or the administrator's designee responsible for inspections determines that the imminent danger as described in division (A) of this section is such that immediate action is necessary, and further determines that there is not sufficient time in light of the nature, severity, and imminence of the danger to seek and obtain a temporary restraining order or injunction, the administrator or the administrator's designee immediately shall file a petition with the court under division (A) of this section and issue an order requiring action to be taken as is necessary to avoid, correct, or remove the imminent danger.

The administrator, with the advice and consent of the bureau of workers' compensation board of directors, shall adopt rules, in accordance with Chapter 119. of the Revised Code, to permit a public employer expeditious informal reconsideration of any order issued by the administrator under this division. Unless the administrator reverses an order pursuant to the informal reconsideration, the order remains in effect pending the court's determination under this section. If the administrator modifies an order pursuant to the informal reconsideration, the administrator shall provide the court with whom the administrator filed the petition under this section with a copy of the modified order. The modified order remains in effect pending the court's determination under this section.

Effective Date: 07-01-2000; 06-21-2005; 2007 HB100 09-10-2007

4167.15 Request for hearing on order, rule or standard.

Any public employer, public employee, or public employee representative affected by an order, rule, or Ohio employment risk reduction standard proposed, adopted, or otherwise issued pursuant to this chapter, may request, within fourteen days after the proposal, adoption, or issuance of the order, rule, or standard, a hearing from the administrator of workers' compensation. The administrator, within fourteen days after receipt of a request for a hearing, shall appoint a hearing officer to make a determination as to the request. The hearing officer, within fourteen days after the hearing officer's appointment, shall hold a hearing in accordance with Chapter 119. of the Revised Code and, within fourteen days after the hearing, render a decision. A public employer, public employee, or public employee representative may appeal the decision of the hearing officer to the administrator, provided that the appeal is made within thirty days after the hearing officer issues the decision. The decision of the hearing officer is final unless appealed to the administrator within the time period set in this section or unless the administrator, on the administrator's own motion, modifies or reverses the decision within that time period. If a party fails to appeal the decision of the hearing officer, the decision of the hearing officer is not, for purposes of section 4167.16 of the Revised Code, a final order of the administrator and is not appealable to court as provided in section 4167.16 of the Revised Code, except that if the party fails to appeal the decision of the hearing officer, and the administrator modifies or reverses the decision under this section, the decision of the administrator is appealable to court pursuant to section 4167.16 of the Revised Code.

Effective Date: 07-01-2000; 06-21-2005

4167.16 Appeal to court of common pleas.

(A) Any party who is adversely affected by a final order of the administrator of workers' compensation issued pursuant to division (G) of section 4167.10 or section 4167.15 of the Revised Code, and who has exhausted all administrative appeals from such order may appeal the order, within thirty days after the issuance of a final order, to the court of common pleas of Franklin county or to the court of common pleas of the county in which the alleged violation occurred. If the court finds an undue hardship to the appellant will result from the enforcement of the order pending determination of the appeal, the court may grant a suspension of the order and fix the terms thereof.

(B)

(1) The court shall conduct a hearing on the appeal filed under division (A) of this section and shall give preference to all proceedings under this section over all other civil cases, irrespective of the position of the proceedings on the calendar of the court. The hearing shall proceed as in the case of a civil action, and the court shall determine the rights of the parties in accordance with the laws applicable to the action.

(2) The court shall affirm the order of the administrator if it finds, upon consideration of the record as a whole, and additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In absence of that finding, the court shall reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. The judgment of the court is final and conclusive, unless reversed, vacated, or modified on appeal. Any party may appeal as provided in Chapter 2505. of the Revised Code.

(C) No person who has failed to exhaust all of the administrative appeals provided in this chapter may file an appeal of a final order of the administrator under division (A) of this section.

Effective Date: 07-01-2000; 06-21-2005

4167.17 Failure to comply with order.

(A) If a public employer, public employee, or public employee representative willfully fails to comply with any final order of the administrator of workers' compensation issued pursuant to this chapter, the administrator may apply to the court of common pleas of Franklin county or the court of common pleas of the county in which the violation occurred, for an injunction, restraining order, or any other appropriate relief compelling the public employer, public employee, or public employee representative to comply with such order. The court shall order such relief as it considers appropriate and shall, in addition, impose a civil penalty of not more than five hundred dollars per day per violation and not to exceed a total of ten thousand dollars per violation.

(B) The administrator shall not seek to enforce this chapter, or any Ohio employment risk reduction standard, rule, or order adopted or issued pursuant thereto, in any manner that derogates from the immunity offered to a public employer by variances obtained under this chapter, or by variations, tolerance, or exemption allowed a public employer for reasons of national defense by the United States secretary of labor pursuant to section 16 of the "Occupational Safety and Health Act of 1970," 84 Stat. 1590, 29 U.S.C.A. 651 , as amended.

Effective Date: 07-01-2000; 06-21-2005

4167.18 [Repealed].

Effective Date: 09-26-1996; 06-21-2005

4167.19 Application for exemption from program.

(A) A public employer, other than a state agency, may apply to the administrator of workers' compensation for an order exempting the public employer from compliance with this chapter, except as provided in division (K) of this section, if the public employer satisfies both of the following criteria:

(1) The public employer is a member of a group that qualifies for a group rating plan pursuant to division (A)(4) of section 4123.29 of the Revised Code or the public employer's premium rate is at least fifty per cent less than the base rate for its workers' compensation premiums;

(2) The public employer establishes and maintains a safety committee with both public employees and representatives of the public employer as members if the public employer does not qualify for a group rating plan. A public employer that employs five or fewer public employees need not have a safety committee.

(B) The application shall be on a form prescribed by the administrator and shall be transmitted to the administrator by certified mail, return receipt requested. The application shall contain a certification of all of the following:

(1) The public employer has adopted an ordinance or resolution requesting an exemption from this chapter;

(2) At least ten working days prior to passage of an ordinance or resolution described in division (B)(1) of this section, the public employer has informed its public employees of the application by giving a copy of the application to the public employee representative, if any;

(3) The public employer has informed its public employees by posting a statement for thirty consecutive days giving a summary of the application and specifying where a copy of the application may be examined at the place or places where notices to public employees are normally posted, and by any other appropriate means of public employee notification;

(4) The public employer has informed its public employees of their rights to a hearing under section 4167.15 of the Revised Code.

The certification also shall contain a description of how public employees have been informed of the application and of their rights to a hearing.

(C) Except as provided in this section, the administrator shall issue an order providing for an exemption if the public employer meets the requirements of division (A) of this section and files an application that meets the requirements of division (B) of this section.

(D) The administrator shall not grant an exemption under division (C) of this section until after the superintendent of the division of safety and hygiene in the bureau of workers' compensation conducts an employment risk reduction inspection of the public employer's place of employment to determine the presence of any hazardous or unsafe conditions. The administrator shall not cite the public employer for a violation of this chapter during this inspection.

(E) The superintendent shall provide a copy of the report of the inspection conducted pursuant to division (D) of this section and any findings to the public employer. Within six months after receipt of the report, the public employer shall submit the report to the administrator, if the public employer wishes to proceed with the exemption request. If the report does not contain a description of any hazardous or unsafe conditions, the administrator shall grant the public employer an exemption from this chapter, except as provided in division (K) of this section. If the report contains a description of any hazardous or unsafe conditions, the public employer shall submit to the administrator a plan that describes how it intends to remedy, within a one-year period of time, the hazardous or unsafe conditions.

Within thirty days after receipt of the plan from the public employer, the administrator may approve or disapprove the plan as submitted. If the administrator approves the plan as submitted, the administrator shall grant the public employer an exemption from this chapter, except as provided in division (K) of this section.

If the administrator disapproves the plan, the administrator shall return it and the reasons for its rejection to the public employer. The public employer may submit a revised plan, which corrects the deficiencies for which the original plan was rejected, within thirty days after receipt of the disapproved plan from the administrator. The administrator has thirty days after receipt of the revised plan to review it, and if it remedies the administrator's objections, to approve it and grant the exemption. The public employer shall be exempted from this chapter, except as provided in division (K) of this section, if the administrator fails to act within the thirty-day period.

(F) Within ten working days after completing implementation of the plan, the public employer shall certify to the administrator, by certified mail, return receipt requested, that the hazardous or unsafe conditions have been abated.

If a public employer fails to complete the plan within the one-year period of time, the administrator may do either of the following:

(1) Terminate the exemption;

(2) Grant to the public employer a sixty-day extension to the one-year period of time, provided that the administrator determines that the public employer is making significant progress in completing implementation of the plan.

The administrator shall terminate the exemption of a public employer who does not complete implementation of the plan within the sixty-day extension granted by the administrator under division (F)(2) of this section.

(G) The administrator shall inspect a public employer's place of employment immediately after either of the following occur:

(1) A public employee of the public employer is killed due to an incident that is related to the public employee's employment;

(2) Three or more public employees of the public employer are hospitalized due to an incident that is related to the public employees' employment.

After reviewing the inspection report, the administrator may require the public employer to submit to the administrator, within a reasonable amount of time as determined by the administrator, a plan that describes how the public employer intends to remedy any conditions described in the report that the administrator determines need to be remedied.

Nothing in this division constitutes the granting of a new exemption for purposes of determining the seven-year expiration date pursuant to division (H) of this section.

(H) Except as provided in division (F) of this section, an exemption granted pursuant to this section expires seven years after the date of its issuance. A public employer may apply for a subsequent exemption in the same manner provided in this section for the grant of an original exemption.

(I) Each public employer granted an exemption under this section may request the superintendent of the division of safety and hygiene in the bureau of workers' compensation to conduct a safety inspection of the public employer's place of employment any time during the exemption period. Based on this inspection, the superintendent shall note any hazards or unsafe conditions and recommend abatement of these hazards and unsafe conditions. The superintendent shall provide a copy of the report of the inspection conducted pursuant to this division and any resulting recommendations to the public employer. The administrator shall not cite the public employer for a violation of this chapter due to a hazardous or unsafe condition identified by the superintendent pursuant to this inspection.

(J) Notwithstanding any other provision of this chapter, a public employer who meets the requirements of division (A) of this section and files an application that meets the requirements of division (B) of this section is not subject to this chapter, except section 4167.06 of the Revised Code and division (G) of this section, after the date on which the public employer meets the requirements of division (A) of this section and files an application that meets the requirements of division (B) of this section until the administrator determines whether to grant the exemption under this section.

(K) Nothing in this section limits, or shall be construed as limiting, a public employee's rights as provided in section 4167.06 of the Revised Code. Nothing in this section limits, or shall be construed as limiting, a public employer's right to adopt reasonable safety rules and require a public employee's compliance with those rules.

A public employer who is granted an exemption under this section shall not be exempt from divisions (G), (H), and (I) of this section.

Effective Date: 09-22-2000; 2005 HB67 06-21-2005

4167.25 Exposure control plans for health care workers definitions.

As used in this section and sections 4167.27 and 4767.28 of the Revised Code:

(A) "Bloodborne pathogen" means a microorganism present in human blood that can cause disease in humans, including the human immunodeficiency virus, hepatitis B virus, hepatitis C virus, and other pathogenic microorganisms.

(B) "Engineered sharps injury protection" means either of the following:

(1) A physical attribute built into a needle device used for withdrawing body fluids, accessing a vein or artery, or administering medications or other fluids that effectively reduces the risk of an exposure incident by a mechanism such as barrier creation, blunting, encapsulation, withdrawal, retraction, destruction, or any other effective mechanism;

(2) A physical attribute built into a type of needle device not included in division (B)(1) of this section, or built into a non-needle sharp, that effectively reduces the risk of an exposure incident.

(C) "Exposure incident" means an occurrence of occupational exposure to blood or other material potentially containing bloodborne pathogens, including exposure that occurs through a sharps injury.

(D) "Needleless system" means a device that does not utilize needles for the following:

(1) Withdrawing body fluids after initial venous or arterial access is established;

(2) Administering medication or fluids;

(3) Performing any other procedure involving potential exposure incidents.

(E) "Public health care worker" means a person who is employed by a public employer to provide health services that carry with them the potential for exposure incidents, including a person employed by a public hospital or other public health care facility, a person employed by a public employer to provide home health care, and a person employed by a public employer as a firefighter, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical technician-paramedic. "Public health care worker" does not include a person who is employed by a public employer to provide dental services, treatment, or training or a dental student who is receiving training from a public employer.

(F) "Sharp" means an object used in or encountered when providing health care services that can be reasonably anticipated to penetrate the skin or any other part of the body and result in an exposure incident, including objects such as needle devices, scalpels, lancets, and broken glass.

(G) "Sharps injury" means an injury caused by a sharp, including such injuries as cuts, abrasions, and needlesticks.

Effective Date: 10-05-2000; 12-30-2004; 06-27-2005

4167.26 [Repealed].

Effective Date: 12-30-2004

4167.27 Adoption of rule and standard for prevention of exposure incidents.

(A) The public employment risk reduction advisory commission shall adopt a rule and Ohio employment risk reduction standard for the prevention of exposure incidents. The initial rule and standard shall be adopted not later than one hundred eighty days after October 5, 2000.

(B) The commission shall provide advice to public employers with regard to their implementation of the requirements established by the rule and standard adopted under this section and the requirements of section 4167.28 of the Revised Code.

Effective Date: 10-05-2000; 12-30-2004; 06-21-2005; 06-27-2005

4167.28 Duties of employer concerning exposure incidents.

(A) Except as provided in division (B) of this section, each public employer of public health care workers shall do all of the following:

(1) Include, as part of the employer's engineering and work practice controls, needleless systems, sharps that are manufactured with engineered sharps injury protection, and other devices that comply with the United States occupational safety and health administration's bloodborne pathogen standards;

(2) Develop and implement a written exposure control plan that is consistent with the employment risk reduction standard established in rules adopted under section 4167.27 of the Revised Code, including procedures for both of the following:

(a) Identifying and selecting needleless systems, sharps that are manufactured with engineered sharps injury protection, and other devices that comply with the United States occupational safety and health administration's bloodborne pathogen standards;

(b) Updating, at least once a year, the exposure control plan when necessary to reflect progress in implementing needleless systems and sharps that are manufactured with engineered sharps injury protection.

(3) Ensure that all public health care workers are trained in the use of engineering and work practice controls before undertaking any task with potential for exposure incidents;

(4) Maintain accurate records of public health care worker exposure incidents. The records shall contain the following information:

(a) The date and time of the incident;

(b) The type and brand of sharp involved;

(c) The job classification of each worker involved;

(d) The department or work area where the incident occurred;

(e) The procedure the worker was performing at the time of the incident;

(f) How the incident occurred;

(g) The body part involved;

(h) If the sharp involved in the incident was manufactured with engineered sharps injury protection, a specification of whether the incident occurred before, during, or after activation of the protective mechanism;

(i) If the sharp involved in the incident was not manufactured with engineered sharps injury protection, an assessment of whether and how the incident could have been prevented by a sharp with protection, and the basis for the assessment;

(j) Any other relevant description of the exposure incident.

(B) Notwithstanding any provision of the rule and Ohio employment risk reduction standard adopted under section 4167.27 of the Revised Code, both of the following apply:

(1) A public employer, under division (D) of section 4167.09 of the Revised Code, may be granted a variance from the requirements of this section for either of the following reasons:

(a) Needleless systems or sharps that are manufactured with engineered sharps injury protection are not available in the marketplace;

(b) The employer determines, with respect to a specific medical procedure, that use of needleless systems or sharps that are manufactured with engineered sharps injury protection would jeopardize patient or worker safety.

(2) Until five years after the effective date of this section, the employer may allow a drug or other substance to be administered with a device without engineered sharps injury protection, if the drug or substance is received in a prefilled syringe or any other prepackaged administration system and has been approved for commercial distribution or investigational use by the United States food and drug administration.

(C) Any of the records maintained under division (A)(4) of this section may be used by the public employer for purposes of complying with the record-keeping and reporting requirements established under section 4167.11 of the Revised Code.

Effective Date: 10-05-2000

4167.99 Amended and Renumbered RC 1553.99.

Effective Date: 1979 HB555 11-13-1979