Guide to OSHA in North Carolina.

              A Guide to
OSHA in North Carolina
N. C. Department of Labor
Occupational Safety and Health Division
1101 Mail Service Center
Raleigh, NC 27699- 1101
Cherie Berry
Commissioner of Labor
              	

        
4
N. C. Department of Labor
Occupational Safety and Health Program
Cherie Berry
Commissioner of Labor
OSHA State Plan Designee
Allen McNeely
Deputy Commissioner for Safety and Health
Kevin Beauregard
Assistant Deputy Commissioner for Safety and Health
Susan Haritos
Reviewer
A Guide to CAL/ OSHA ( California, June 1985) and Facts About Occupational Safety and Health ( Kentucky,
February 1985) provided ideas and a framework for this guide. The information in this guide was updated in 2009.
This guide is intended to be consistent with all existing OSHA standards; therefore, if an area is considered by
the reader to be inconsistent with a standard, then the OSHA standard should be followed.
To obtain additional copies of this guide, or if you have questions about N. C. occupational safety and health standards or
rules, please contact:
N. C. Department of Labor
Education, Training and Technical Assistance Bureau
1101 Mail Service Center
Raleigh, NC 27699- 1101
Phone: ( 919) 807- 2875 or 1- 800- NC- LABOR ( 1- 800- 625- 2267)
____________________
Additional sources of information are listed on the inside back cover of this guide.
____________________
The projected cost of the NCDOL OSH program for federal fiscal year 2008– 2009 is $ 17,042,662. Federal funding provides approximately 30 percent ($ 4,090,400) of
this total.
Revised 9/ 09
Contents
Part Page
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1iiv
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1iiv
1 A Brief Overview of OSHA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iiv1
2 Responsibilities and Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii13
3 OSHA Administration and Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii26
4 The Occupational Safety and Health Review Commission of North Carolina . . . . . . . . . . . ii14
5 Occupational Safety and Health Act of North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii15
6 Other Sources of OSHA Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii31
iii
Few laws affect employers and employees more than
the laws and regulations that have come to be known as
“ OSHA.” Congress passed the Occupational Safety and
Health Act in 1970 to protect working people. OSHA’s
creation culminated a long struggle to find some way to
help prevent individuals from being disabled or even
killed while earning a living. This prevention- oriented
act proposed to “ preserve our human resources” through
a combination of research, education and enforcement of
occupational safety and health standards.
In North Carolina, N. C. Department of Labor
enforces the federal Occupational Safety and Health Act
through a state plan approved by the U. S. Department of
Labor. NCDOL offers many educational programs to the
public and produces publications to help inform people
about their rights and responsibilities regarding occupa-tional
safety and health.
When reading this guide, please remember the mis-sion
of the N. C. Department of Labor is greater than just
regulatory enforcement. An equally important goal is to
help citizens find ways to create safe and healthy work-places.
Everyone profits when managers and employees
work together for safety. This booklet, like the other
educational materials produced by the N. C. Department
of Labor, can help.
Cherie Berry
Commissioner of Labor
iv
Foreword
This industry guide provides a comprehensive
overview of North Carolina’s occupational safety and
health plan. The N. C. Department of Labor’s Occupa-tional
Safety and Health Division ( OSH) uses the plan to
meet the requirements of the Occupational Safety and
Health Act of North Carolina and other applicable laws.
Please note, this guide does not provide legal interpreta-tions.
Both the federal Occupational Safety and Health Act
of 1970 and its North Carolina counterpart have become
known as “ OSHA” to most people. This publication
looks at how OSH enforces and administers the occupa-tional
safety and health act in North Carolina.
Part 1 explains differences between state and federal
administration. Many employer and employee responsi-bilities
and rights are examined in Part 2. The third sec-tion
explores enforcement activities and the numerous
services available to employers and employees.
Administrative and judicial review procedures are dis-cussed
in Part 4. Official announcement and listings ( as
promulgated) for the Occupational Safety and Health
Act of N. C. are provided in Chapter 95, Article 16, of
the N. C. General Statutes. A current copy of the
Occupational Safety and Health Act of North Carolina is
provided in Part 5 of this industry guide.
The NCDOL’s Occupational Safety and Health
Division fulfills its mission of helping people stay safe at
work by incorporating industry partnerships, focusing
compliance activities on employers with poor safety
records and stressing prevention.
v
Introduction
Distinctions Between Federal OSHA
and OSH
In 1970, Congress passed the Occupational Safety and
Health Act “ to assure so far as possible every working
man and woman in the Nation safe and healthful working
conditions.” Congress developed a two- pronged
approach to meet the act’s goals: ( 1) research to deter-mine
the causes of occupational injuries and illnesses
and, based on that research, ( 2) the development and
enforcement of standards to remove those hazards from
the workplace. The National Institute for Occupational
Safety and Health ( NIOSH) was created by the act to
perform the research function. The Occupational Safety
and Health Administration was created to perform the
enforcement function. States were given the option of
being subject to federal OSHA or administering their
own occupational safety and health programs.
Public awareness of the magnitude of losses from
occupational injuries and illnesses led to the enactment
of the federal Occupational Safety and Health Act of
1970. That same year, a United States congressional
committee determined that 2.25 million individuals in
America had been disabled by accidents at work in
1969. The committee also estimated that American
workers had contracted 336,000 cases of disease at
work. The employees who sustained injuries and
acquired diseases at work had lost over $ 1.5 billion in
wages during the year. The loss to the national economy
was estimated to have exceeded $ 8 billion, according to
the Employment Safety and Health Guide ( CCH, 1986).
For many years, North Carolina had its own industri-al
safety program in place, so it came as no surprise
when the state chose to administer its own OSHA pro-gram.
The Occupational Safety and Health Act of North
Carolina was signed into law in 1973. North Carolina
and federal OSHA funds jointly support the operation
of the state OSHA program. The North Carolina plan is
required to be “ as effective” as federal OSHA and is
monitored by federal OSHA to ensure that it remains as
or more effective. OSHA safety and health rules and
laws, collectively called “ standards,” are enforced by
the Occupational Safety and Health Division ( OSH)
within the N. C. Department of Labor. These standards
provide employees in the state with at least the same
protection as they would receive under standards
enforced by federal OSHA.
In addition, standards related to the particular needs
of this state are promulgated and enforced by OSH.
Occupational safety and health standards are promulgat-ed
pursuant to N. C. General Statute 150B and are locat-ed
in Title 13, Chapter 7, of the N. C. Administrative
Code.
The 1992 N. C. General Assembly passed a compre-hensive
package of reforms. These included an expan-sion
of the number of OSH compliance officers,
enforcement focus on high- risk industries and the autho-rization
of fines to be levied against governmental enti-ties
for noncompliance. The OSH state plan was desig-nated
as fully effective by the U. S. Department of Labor
on Dec. 10, 1996.
OSH provides consultation, education, training and
technical assistance to help ensure the effectiveness of
the state plan. Like federal OSHA, OSH pursues the
overall aim of assuring workers safe and healthful
working conditions “ so far as possible.” With limited
exceptions, protection under OSH extends to virtually
all employees and employers in the public and private
sectors.
The North Carolina OSHA Plan—
Compliance; Consultation; Education,
Training and Technical Assistance
The General Assembly designated the state
Department of Labor to administer and enforce North
Carolina’s OSH plan. In the Department of Labor, the
chief administrator is the commissioner of labor. The
Occupational Safety and Health Advisory Council pro-vides
the commissioner with advice regarding the
administration of the state OSH Act.
The commissioner appoints the director of OSH.
Under the commissioner’s supervision, the director and
his or her professional staff administer the OSH Act.
The following bureaus are in OSH:
Compliance— OSH Compliance is composed of an
East Bureau and a West Bureau. These two bureaus
operate primarily on a state geographic basis to cover
regional areas throughout North Carolina. The East
Bureau is headquartered in the Raleigh field office, and
the West Bureau is headquartered in the Winston- Salem
field office. Additional field offices are located in
Asheville, Charlotte and Wilmington. Relative to areas
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A Brief Overview of OSHA
within their respective regions, both East and West
Bureaus have compliance and inspection duties: Safety
Compliance— conducts safety inspections; Health
Compliance— conducts health inspections. Through
enforcement activity, the effort of OSH Compliance is to
assist employers in improving their workplace safety
and health programs to eliminate on- the- job injuries and
illnesses.
Consultative Services provides free on- site consulta-tion
regarding both safety and health issues. Services are
provided to employers of limited size and to employers
within high- hazard industries, assisting them to reach
their goal of achieving a safe and healthful workplace
for their employees.
Education, Training and Technical Assistance
( ETTA) offers educational materials, arranges confer-ences,
and provides professional training for OSH staff
members and for the public. The bureau also offers
assistance with standards interpretation. In addition,
ETTA administers the adoption of federal standards and
develops North Carolina- specific standards, responds to
requests for technical assistance and interpretations,
reviews variance requests, and publishes a wide variety
of industry guides, safety and health standards books for
general industry and construction, and other documents
that are available to the public.
Agricultural Safety and Health enforces the
Migrant Housing Act of North Carolina through an
annual housing registration, inspection and compliance
program. The bureau also enforces OSHA requirements
for field sanitation.
Planning, Statistics and Information
Management— The Planning, Statistics and Information
Management Bureau’s primary functions are targeting;
data compilation, analysis and reporting; disclosure of
compliance files; conducting two annual surveys ( one for
the private sector and one for the public sector) to collect
injury and illness data; and case file storage and retrieval.
Though not part of OSH, other divisions within the
N. C. Department of Labor also contribute to the state’s
occupational safety and health effort:
The Research and Policy Division’s Survey Unit
collects and processes information on workplace
injuries, illnesses and fatalities for the U. S. Bureau of
Labor Statistics ( BLS). The information is drawn from
records in which employers are required to log record-able
injuries and illnesses. The survey results are posted
annually on the Internet on the BLS webpage.
The Employment Discrimination Bureau adminis-ters
and enforces the Retaliatory Employment
Discrimination Act. This act makes it illegal for an
employer to discriminate against an employee who exer-cises
certain rights guaranteed in North Carolina through
the OSH Act, the Mine Safety and Health Act, the Wage
and Hour Act, the Workers’ Compensation Act, the
Workplace Violence Prevention Act and other various
laws. The Employment Discrimination Bureau investi-gates
such discrimination complaints and offers educa-tional
programs on this subject.
2
The Occupational Safety and Health Act of North
Carolina provides employees and employers with
numerous responsibilities and rights. Additional respon-sibilities
and rights derive from other sources, including
OSHA standards and judicial decisions regarding occu-pational
safety and health issues in North Carolina.
Employee Responsibilities
The OSH Act makes each employer primarily respon-sible
for the safety and health of its employees. However,
the OSH Act also specifies that each employee has the
responsibility to “ comply with occupational safety and
health standards and all rules, regulations and orders”
issued under the act that relate to his or her work.
Employee Rights
The list of rights below is not intended to be compre-hensive.
Rather, the list is intended to be representative
of an employee’s rights. Many of these rights were cre-ated
by the OSH Act. Other rights are from OSHA stan-dards,
which are enforced through the act. Moreover,
migrant employees have additional rights, whereas other
rights do not apply to migrants. Additional rights have
emerged from administrative and judicial resolutions of
issues that have arisen under the act.
Employee Working Conditions
You have the right to:
1. Be provided safe and healthful working conditions.
2. Ask the commissioner of labor to investigate if
you believe you are being harmed by physical
hazards or by exposure to toxic materials.
3. Gain access to your employee “ exposure records”
if you have been exposed to toxic substances or
harmful physical agents. Such records provide the
results from tests that monitored the effects of
exposure.
4. Obtain any “ medical records” required to be creat-ed
and maintained by your employer.
5. Receive a copy of any written program required by
a standard that applies in your work environment.
6. Assist the commissioner of labor in an inspection
of your employer’s workplace. You are protected
from discharge and discrimination that may result
from such assistance.
7. Learn of any imminent danger in your place of
employment, whenever it is discovered by an
OSH compliance officer.
Employee Training
You have the right to:
1. Receive training regarding aspects of your job that
might pose a hazard to you. The types of training
you may be required to receive would vary with
the nature of your job. Examples of such training
include the proper use of respirators; emergency
and fire prevention techniques; safe working pro-cedures
involving occupational noise exposure;
how to handle and store liquefied petroleum gases;
the safe operation of particular machines; how to
detect the presence of hazardous chemicals; and
how to interpret a material safety data sheet
( MSDS) regarding a hazardous chemical.
Employees and Standards
You have the right to:
1. Propose to the commissioner of labor that a safety
or health standard be developed.
2. Participate in hearings about standards that have
been proposed by anyone.
3. Petition the commissioner for a review of any
standard you believe to adversely affect you or
other employees.
4. Be notified by your employer of its application to
the commissioner to be allowed to vary ( protect
employees in a manner other than prescribed)
from a standard.
5. Participate in any hearing concerning your
employer’s variance application.
6. Petition the commissioner to review any variance
granted to your employer if you think the variance
adversely affects you or other employees.
7. Within six months of the issuance of a permanent
variance, apply to the commissioner asking that
the variance be revoked.
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2
Responsibilities and Rights
Employees and Inspections
You have the right to:
1. Request the commissioner to inspect your work-place
regarding what you believe to be a violation
of safety and health standards. Employees can
report conditions that they believe to be imminent
dangers or extremely hazardous by calling the
OSH toll- free hotline, 1- 800- 625- 2267.
2. Ask that your name not be revealed in any request
you make for an inspection of your workplace.
Your request for confidentiality will be honored.
3. Be free from discrimination or retaliatory action
by your employer for having exercised your right
to request an inspection in your workplace or for
exercising any other right guaranteed by the act.
4. Consult with the commissioner and his or her
agents, including compliance officers who inspect
your workplace.
Employees and Citations
You have the right to:
1. See any citation received by your employer for the
alleged violation of a safety or health standard.
The citation should be posted at or near the place
where the violation occurred.
2. Write to the commissioner contesting the length of
time allowed to your employer for correcting a
safety or health standard violation.
Employees and Reviews
You have the right to:
1. Appear before the Occupational Safety and Health
Review Commission of North Carolina as a party
in any contest filed by your employer or by an
employee in general or construction industry cases.
2. Participate as a party before the commission when
your employer petitions the commissioner for a
modification, typically a postponement, of the
date set in the citation for the abatement of any
safety or health standard violation.
3. Appear as a party before the commission to contest
particular aspects of a proposal between your
employer and the commissioner to settle a citation.
4. Appeal to the N. C. Superior Court any final com-mission
decision that is counter to your interest in
a contested case.
Employer Responsibilities
The responsibilities listed below are not intended to
be comprehensive. The list is meant to represent your
responsibilities as an employer. Many of your responsi-bilities
were created by the OSH Act. Other responsibili-ties
are detailed within standards that are enforced
through the OSH Act. Additional responsibilities have
emerged from administrative and judicial resolutions of
issues that have arisen under the act.
Employers and Working Conditions
You have the responsibility to:
1. Provide for each employee a place of employment
and employment conditions that are free from rec-ognized
hazards that are causing or likely to cause
death or serious injury or serious physical harm to
your employees.
2. Comply with OSHA standards that the commis-sioner
of labor adopts.
Employers and Inspections
You have the responsibility to:
1. Assist the commissioner of labor’s agents, typical-ly
compliance officers, in their inspection duties
by making available necessary information, per-sonnel
and inspection aids.
2. Allow employees to confer with the commissioner’s
agents, including compliance officers conducting an
inspection of your place of employment.
3. Allow employees to observe the monitoring of any
toxic materials that are required by OSH standards
to be monitored.
Employers and Information
You have the responsibility to:
1. Post in a conspicuous place the N. C. Department
of Labor poster “ North Carolina Workplace Laws,”
which informs employees of their protections and
obligations. Employers may obtain this poster free
of charge from NCDOL/ ETTA by calling 1- 800-
625- 2267.
2. Maintain both a log ( OSHA Form 300 or its
equivalent) of recordable occupational injuries and
illnesses and a supplement ( OSHA Form 301 or
its equivalent) to the log. Employers with fewer
than 11 employees in the total corporation are nor-mally
exempted. Additionally, employers in cer-tain
SIC codes are exempt regardless of size.
4
Make both forms available to compliance officers
and make Form 300 or its equivalent available to
employees. An annual summary ( Form 300A) for
the previous year must also be posted from Feb.
1. through April 30 each year.
3. Participate in the annual occupational injury and
illness survey to assist the commissioner in com-piling
statistics relative to the incidence of work-related
injuries and illnesses.
4. Promptly notify any employee of his or her over-exposure
to toxic or harmful substances.
5. Report to OSH within eight hours of its occur-rence
any work- related accident that is fatal to one
or more employees or that requires in- patient hos-pitalization
of three or more employees.
6. Post citations for alleged violations of OSH stan-dards
at or near the place where the violations
allegedly occurred, so that employees are able to
read the citations.
7. Post, in a place that will notify employees, copies
of any petition for modification of an abatement
date and of any amended citation that extends the
abatement date.
8. Post a copy of any proposal and/ or agreement
between the employer and the commissioner to
settle the terms of a citation.
Employer Rights
The act makes each employer primarily responsible
for the safety and health of its employees. However, the
OSH Act also provides employers with numerous rights.
The list below details some of those rights.
Employer Assistance
You have the right to:
1. Ask OSH for education, training, technical assis-tance
and consultation services relating to compli-ance
with the act.
2. Receive material safety data sheets from manufac-turers
and importers of hazardous chemicals for
each hazardous chemical they produce or import.
Employers and Standards
You have the right to:
1. Expect that any citation issued to you will be
issued within a reasonable period of time, not to
exceed six months from the occurrence of the
violation.
2. Expect that any citation issued to you will specif-ically
describe the nature of the alleged violation
and the standard, regulation, rule or order
allegedly violated.
3. Request an informal conference to discuss any
aspect of a citation for the alleged violation of an
OSH standard. Employees may also attend such a
conference, and they may also request an informal
conference.
Employers and Reviews
You have the right to:
1. Contest any alleged violation, the length of time
allowed on a citation for correcting any alleged
violation, and any penalty assessed for an alleged
violation in general or construction industry cases.
2. Appeal to the N. C. Superior Court any final deci-sion
against your interest in a contested case.
5
Prior to 1973, the N. C. Department of Labor had pro-moted
safety by administering a program that encour-aged
industry to comply voluntarily with safety and
health standards. Based on this program, the General
Assembly designated the department to administer and
enforce the OSH Act of North Carolina.
The department administers and enforces the OSH
Act of North Carolina through the Occupational Safety
and Health Division, called OSH. This division is subdi-vided
into bureaus composed of several functional orga-nizations:
Consultative Services; Education, Training
and Technical Assistance; OSH Compliance ( East
Bureau; West Bureau); Agricultural Safety and Health;
and Planning, Statistics and Information Management.
The department believes that employers and employ-ees
desire to comply voluntarily with safety and health
requirements. Voluntary compliance is encouraged
through the Consultative Services Bureau and the
Education, Training and Technical Assistance Bureau.
Consultative Services Bureau
The Consultative Services Bureau’s primary functions
are the Onsite Consultation Program, Carolina Star
Programs and the Safety Awards Program. The
Consultative Services Bureau functions independently
from the Compliance Bureaus. It does not share infor-mation
with Compliance regarding visited sites.
Therefore, when an employer asks for a consultative
visit, that request neither increases nor decreases the
chance that his or her business will be inspected by a
compliance officer. The exceptions to this rule are when
an employer is granted a one- year exemption from the
safety compliance program following a consultation,
when an accident investigation is necessary, or when a
significant complaint is received.
As a main condition for securing consultative services,
the employer must agree to eliminate immediately any
hazards identified as “ imminent dangers” and to correct
all hazards that could be classified as “ serious violations”
of OSH standards. Consultative Services will only confer
with the OSH director, who may then contact the appro-priate
compliance organization, if an employer fails or
refuses to eliminate one of these imminent dangers or
serious violations identified during a consultation.
The Consultative Services Bureau does not cite
employers for alleged standards violations. It does not
assess monetary penalties. The results of a consultative
visit are confidential, so there is no requirement that a
consultant’s findings be posted. The bureau’s services
are provided free of charge. A consultative visit can
mean savings for both employers and employees. Safe
and healthy employees translate into low medical, legal,
retraining, clerical and insurance costs.
Due to funding restrictions, the Consultative Services
Bureau limits services to employers of limited business
size and to those within high- hazard industries. In the
private sector, the onsite consultation is funded to pro-vide
free consultation to “ small employers” in high- haz-ard
industries. A small employer is defined as one with
500 or fewer employees controlled by the company
nationwide, and 250 or fewer employees at the specific
site. Specific sites with 251 to 500 employees are eligi-ble
for consultation, but at a lower priority. In the public
sector, the Onsite Consultation Program may serve any
size employer; however, priority is given to the most
hazardous operations when known.
Obtaining Consultative Services
The following steps lead to and occur during a visit
from Consultative Services:
Request for Consultation
The employer must contact Consultative Services and
request a survey of part or all of his or her business. A
safety or health consultant from the bureau will then
contact the employer to set up a visit. The consultant
will also expect the employer to commit to correct any
unsafe conditions classified as “ serious” that are discov-ered
during the visit.
Opening Conference
The visit begins with a conference to establish the
scope of the consultant’s role and to define the employ-er’s
responsibilities. For example, the consultation may
be limited to safety or health ( or a combination) and
may include one department or worksite or the entire
operation.
Walkthrough
The consultant will conduct the safety and health sur-vey
by examining both work conditions and practices
and by paying close attention to problems identified by
the employer. The consultant can be expected to look
for hazards such as unguarded machines, fire safety
problems and tool maintenance. Other facets of an
6
3
OSH Administration and Enforcement
employer’s business that will be examined include
looking for air contaminants, noise levels and extreme
temperatures. The consultant will need to talk freely
with employees about safety and health subjects.
Closing Conference
The visit ends with a conference to review any prob-lems
identified by the consultant. The consultant will
suggest possible solutions to problems observed and may
offer the additional assistance of colleagues who have
special training. Sources of other technical assistance
also may be identified. The consultant and employer will
agree upon a plan to correct any observed hazards.
Follow- Through and Correction
Following the visit, the consultant will send the
employer a written report of his or her findings. This
report will include the mutually accepted plan, if any
was needed, for correcting observed hazards. The
employer will then be expected to send a completed
form to Consultative Services confirming the correction
of any such hazards. If the form is not submitted, the
employer will be revisited by the consultant.
There are numerous advantages to using Consultative
Services. In addition to identifying hazards, consultants
can help establish programs for training employees in
safety and health and can help develop injury and illness
prevention programs. Here are two examples:
Example One: Management of an embroidery emblem
plant requested a comprehensive survey to identify haz-ards
to its employees, including unsafe work procedures.
The company’s rate of injury and illness incidents was
over five times that for the employer’s industry nationally.
The safety survey revealed five hazards that would be
considered violations of OSH standards. The time given
to correct the hazards was approximately 18 months.
Deficiencies in the company’s safety and health training
program and accident investigation/ prevention program
were highlighted.
Within two years of the consultative survey, the com-pany’s
rate of injury and illness incidents had dropped to
approximately one and one- half times that for the
employer’s industry. The employer reported a monetary
savings from the reduction in lost workday injuries and
illnesses. The employer also reported that employee pro-duction
and morale had improved significantly.
Example Two: A company that produced metal com-ponents
for the maintenance of diesel engines requested
a comprehensive safety survey of its workplace.
Company employees had experienced numerous injuries
from contact with machinery.
Ten hazards that would have been considered stan-dards
violations were identified through the safety sur-vey.
Approximately five months were required to correct
the hazards.
As a result of the visit, the company hired a full- time
director for safety and reorganized its safety policies and
procedures, including the expansion of its safety and
loss control policy.
The employer reported an immediate reduction in
employee injuries. Production rose and employee morale
greatly improved.
Though a Consultative Services consultant’s actions
will not alter the employer’s chances of being inspected
by Compliance, a consultation survey may lead to a lim-ited
exemption from safety- related inspections. There is
no exemption for health- related inspections.
Exemptions From Safety Compliance Inspections
Through Consultative Services
For employers who do not work within agriculture,
construction at changing worksites or maritime opera-tions,
a consultation safety survey may lead to a one- year
exemption from routine safety compliance inspections.
Following such a one- year exemption, an employer is
again eligible to participate in the exemption program
after the expiration of one intervening year.
To apply for participation in the exemption program,
an employer should submit a written request for a com-prehensive
safety survey to Consultative Services. A
participant must agree to the conditions of the survey.
For example, the participating employer may not limit
the survey in scope, as he or she could do when request-ing
other consultative services. However, the employer
may be assured that the consultant will not reveal an
employer’s trade secrets. Similarly, the employer must
agree to abate all hazards identified by the consultant.
In addition to conducting the safety survey, the visit-ing
consultant will be looking for evidence to substanti-ate
the following:
  Commitment by top management to provide a safe
and healthful workplace, free from recognized haz-ards.
A written, effectively communicated safety
program would be one example of such commit-ment.
The assignment of responsibility to manage-ment
for the employer’s safety and health program.
The existence of a readily identifiable safety offi-cer
is illustrative.
  Regular employee participation in the safety and
health program through safety committees or
through meetings with supervision with respect to
workplace safety and health.
7
  A formal program of self- inspection, with the timely
removal of hazards and with appropriate corrective
actions to prevent the recurrence of similar acci-dents.
  A program for training employees and supervisors
relative to safe work practices and for establishing
a sense of individual responsibility for contributing
to overall safety and health efforts.
It should be noted that exemption from compliance
inspections through Consultative Services applies only
to randomly scheduled ( programmed or “ general sched-ule”)
inspections. Compliance may investigate employee
complaints, fatalities and accidents. The Compliance
Bureau may inspect also for health hazards. If such
inspections reveal violations classifiable as serious, then
the employer’s exemption from inspections would be
ended.
Safety Awards Program
The Safety Awards Program, administered by
Consultative Services, recognizes private firms and pub-lic
agencies throughout the state that achieve and main-tain
superior safety records. Both annual safety awards
and million- hour safety awards are presented to provide
an incentive to employers and employees to maintain
safe and healthful workplaces.
Any company or public agency having 10 or more
employees is eligible to participate in the awards pro-gram.
Applications are mailed to participants in January,
and awards are presented at a series of 30 banquets
across the state each spring. Additional criteria are
detailed on the applications. To participate in the pro-gram,
contact the safety awards coordinator at ( 919)
807- 2908; N. C. Department of Labor, Occupational
Safety and Health Division, 1101 Mail Service Center,
Raleigh, NC 27699- 1101; toll- free telephone:
1- 800- 625- 2267.
Carolina Star Program
The Carolina Star Program offers several benefits to
employers who make occupational safety and health
excellence a fundamental part of their businesses. OSH
offers four Carolina Star Programs: ( 1) The Carolina
Star Program recognizes worksites that are self- suffi-cient
in their ability to control hazards at the worksite.
( 2) The Rising Star Program recognizes worksites with
good safety and health program, but must take additional
steps to achieve Carolina Star quality. ( 3) The Building
Star Program recognizes construction worksites that
have Carolina Star quality safety and health programs
but require demonstration of approaches and procedures
that differ from current Carolina Star requirements.
( 4) The Public Sector Star Program recognizes the
safety and health programs of state and local government
agencies. Requirements are identical to those for the
Carolina Star Program with a few additions. Employers
who meet the program’s tough criteria receive public
recognition from the N. C. Department of Labor. Carolina
Star recipients are exempted from regularly scheduled
OSH safety and health inspections for three years.
Winning the Star designation is difficult. An applicant
must have an illness and injury rate that is 50 percent or
less of the average for that type business in North
Carolina. The applicant must detail all of its safety and
health programs and committees, as well as showing real
employee involvement in those programs. Finally, the
applicant must pass a rigorous onsite visit from the
Carolina Star inspection team before it can receive a
Carolina Star award.
The exemption only applies to regularly scheduled
OSH inspections. The division can inspect a Carolina
Star employer during the three- year period if it receives
a complaint or if there is an accident at the site.
For more information about Carolina Star Programs,
contact the Carolina Star program manager in the OSH
Consultative Services Bureau at 1- 800- 625- 2267 or
( 919) 807- 2899.
Education, Training and Technical
Assistance Bureau
In the North Carolina OSH Act, the General Assembly
listed education as one of the prime means of preventing
injuries and illnesses. The Education, Training and
Technical Assistance Bureau ( ETTA) is the primary
coordinator and administrator of this educational func-tion.
ETTA works to develop appropriate partnerships,
coordinate and conduct internal and external training, and
provide outreach to stakeholders and affected industries.
The overall emphasis of ETTA, consistent with efforts of
other OSH bureaus, is on removing/ reducing hazards that
lead to injuries, illnesses or fatalities in selected indus-tries
and activities.
Standards Interpretation and Publications
ETTA offers service and provides response to
requests for technical assistance and interpretation of
safety and health standards. The ETTA Bureau works
on issues related to adoption and/ or development of
safety and health standards as applied by OSH.
Additionally, ETTA evaluates variance requests, inter-prets
safety and health standards, and provides technical
assistance. Copies of safety and health standards for 29
CFR 1910 ( General Industry) and 29 CFR 1926
( Construction Industry) can be obtained from ETTA.
8
Other North Carolina occupational safety and health
publications available to the public include books,
brochures, “ Notice to Employees” posters, forms,
industry guides and a publications list.
Education
Activities: The bureau’s efforts of training and out-reach
include working with private health and safety
organizations, industry groups, private safety consul-tants,
individual businesses, and governmental agencies
to provide informed speakers on safety and health top-ics.
Fundamental, general information is presented to
improve the ability of the participants to recognize and
control workplace hazards.
Some activities are conducted each year within sever-al
safety schools located around the state. At these
events, recognized authorities provide specialized infor-mation
about safety and health to businesses, especially
those of limited size. The cost to attend is minimal.
Current schools include:
  Charlotte Regional Occupational Safety and
Health School— Charlotte
  Eastern Carolina Safety and Health School— New
Bern
  Hickory Safety School— Hickory
  Wilmington Regional Safety and Health School—
Wilmington
  Western N. C. Safety and Health School— Asheville
A school generally lasts for two days. A sampling of
recent topics includes OSHA recordkeeping, fall protec-tion,
trenching and excavation, electrical safety, fleet
safety management programs, ergonomics, respiratory
protection, employee safety and health training, blood-borne
pathogens, how to inspect for hazards, and
hazardous waste and emergency operations.
Educational Information
Printed information on various topics is available
through the Education, Training and Technical
Assistance Bureau to employers and employees.
Periodically, ETTA issues “ Hazard Alerts” to warn of
newly identified hazards or to provide new or additional
information about known hazards.
The technical assistance staff also provides informa-tion
to the department’s Labor Ledger publication. This
monthly newsletter to the public covers a wide range of
labor topics including OSH news. For more information
on how to subscribe to the Labor Ledger, visit the
NCDOL Web site at www. nclabor. com.
Industry guides ( such as this one) address topics of a
general nature or focus on specific subjects. The aim of
the series is to provide information about occupational
safety and health pertinent to the types of work com-monly
done in North Carolina.
Copies of industry guides, OSHA standards, injury
and illness recordkeeping forms, safety and health
posters, and other information are available from ETTA.
Departmental Library
Much of OSH’s research and reference information is
available to the public through the Department of
Labor’s library. The library’s labor- related collection of
nearly 12,000 volumes, including 1,200 videos/ DVDs
that deal with specific occupational safety and health
subjects.
The library also has access to computer products that
index occupational safety and health articles on topics
from textile safety to ergonomics. Federal OSHA stan-dards
and documents can be accessed through the system.
The most popular occupational safety and health train-ing
materials are the videos/ DVDs. They are loaned free
of charge, except for the costs to return the items. To
request these audiovisuals, please call the library at 1-
800- 625- 2267 or ( 919) 807- 2848. Research questions
should be directed to the librarian at ( 919) 807- 2850. To
obtain a complete list of videos/ DVDs, please contact the
librarian at: ( Mailing address) N. C. Department of Labor
Library, 1101 Mail Service Center, Raleigh, NC 27699-
1101; Fax: ( 919) 807- 2849; ( Physical address) 111
Hillsborough St., Fifth Floor ( located in the Old Revenue
Building at the corner of Hillsborough and Salisbury
streets, across from the Capitol). ( Library Internet home-page)
http:// www. nclabor. com/ lib/ lib2. htm.
The following list of titles is illustrative of the
library’s videos/ DVDs:
Avoiding Computer Strains and Pains
Working in Confined Spaces: How to Do It Safely
Safety on the Job: Working With Electricity
Employee Evacuation: Action for Survival
Forklift Fundamentals: Get the Facts
Hazard Communication: A Healthy Responsibility
Heat Stress
Bloodborne Pathogens: Know the Risk
Bloodborne Pathogens: A Sharper Image
Chemical Safety in the Laboratory
Lockout/ Tagout Control of Hazardous Energy Sources
Me and My Back
Machine Hazard Awareness
Hearing Protection Sounds Good to Me
Respiratory Protection
9
On Solid Ground: A Plan for Safe Excavation and
Trenching
Personal Fall Protection: Hook Up!
Arc Welding Safety
The public is encouraged to visit the library. It is
staffed by a professional librarian who assists visitors in
locating materials or in finding answers to research
questions. Visitors may wish to call ahead and make an
appointment to ensure that the librarian will be available
for assistance.
Training
The OSH Act encourages employers to institute pro-grams
that will provide safe and healthful working con-ditions.
OSHA standards require that employers provide
employees with specific types of training. Efforts of
training and outreach conducted by the Training Section
of ETTA, as well as Consultative Services, and the
Standards Section can help employers establish compa-ny
safety programs, including safety committees that
can be trained to recognize workplace hazards.
Technical Assistance
Hazard Abatement
Employers who require assistance to eliminate work-place
hazards may call the Standards Section for help.
Examples of conditions for which technical assistance is
frequently requested include electrical hazards, machine
guarding problems, and matters regarding fire preven-tion
and protection, recordkeeping, hazard communica-tion,
respiratory protection, and bloodborne pathogens.
Standards Interpretation
The Education, Training and Technical Assistance
Bureau interprets OSHA safety and health standards for
employers and assesses the employer obligations
assigned by OSHA standards. For new and complex
standards, ETTA may provide speakers to address
groups of interested persons. State OSH standards may
differ from those of federal OSHA. Information about
state standards may be obtained by contacting ETTA’s
Standards Section. ( See the inside back cover of this
publication for more contact information.)
Variance Applications
An employer may apply for a temporary variance
from a standard based on the following reasons: unavail-ability
of personnel, materials or equipment, or because
construction will be needed that cannot be completed by
the effective date of the standard.
A permanent variance may be granted where an
employer’s practices do not follow the letter of the
standard but do afford employees protection equal or
superior to that specified by the standard. The ETTA
Bureau may be called upon to evaluate a matter, to assess
alternative protections being afforded to employees and
to submit recommendations regarding the variance appli-cation.
The most important consideration for granting
any type of variance is the provision of equally effective
or superior alternative protection for employees.
The Education, Training and Technical Assistance
Bureau is separate from the OSH compliance organiza-tions.
It does not issue citations nor assess monetary
penalties. Services are free to North Carolina employers.
Compliance Bureau
Day- to- day responsibility for enforcing OSHA stan-dards
in North Carolina belongs to the OSH director.
The director must “ uniformly superintend, enforce, and
administer applicable occupational safety and health
laws.” All inspections necessary to the enforcement of
the OSH Act are required to be “ promptly and effective-ly”
conducted by the director or his or her agents. The
director accomplishes these enforcement duties through
the OSH Compliance Bureau.
The purpose of the Compliance Bureau is to ensure
compliance with Occupational Safety and Health Act,
rules, standards and regulations; to ensure employee pro-tection
in workplaces throughout North Carolina; and to
provide professional industrial hygiene, safety engineering,
administrative, training and technical services, as neces-sary,
to all employers within the state of North Carolina.
OSH Compliance consists of two bureaus, composed of an
East Bureau and West Bureau within OSH. The East
Bureau is headquartered in the Raleigh field office; West
Bureau is headquartered in the Winston- Salem field office.
Both East and West Bureaus inspect worksites, to address
safety and/ or health compliance, for safety hazards and
occupational health and illness problems.
Inspections
Priorities and Types of Inspections
The Compliance Bureau investigates worksites
based on the following priorities: ( 1) imminent dangers;
( 2) accidents and fatalities; ( 3) valid employee com-plaints;
and ( 4) general workplace conditions. The last
type includes follow- up inspections and randomly
selected inspections of general industry sites, construc-tion
sites and agricultural operations.
Inspection Procedures
Entry: As required by the OSH Act, inspections are nor-mally
conducted without advance notice. The health or
10
safety compliance officer may be expected to arrive at a
reasonable time— usually during customary business hours.
He or she will present OSH credentials and ask to meet
with the senior employer official at the site. If permission
to enter is refused, the compliance officer will leave and
obtain an administrative inspection warrant, then return to
conduct the inspection. Otherwise, the compliance officer
will proceed with the “ opening conference.”
Opening Conference: The primary purpose of the
opening conference is to provide an opportunity for the
compliance officer to explain the nature and scope of the
inspection. Depending upon the type of inspection, the
focus may concern part or all of the workplace.
The compliance officer will also ask that the employ-er’s
occupational injury and illness records be made
available for review. Next, the inspection process or
“ walkaround” will be explained. A request will be made
that an employee representative accompany the compli-ance
officer and employer representative on the walk-around.
Walkaround: During the walkaround, the compliance
officer’s duty will be to determine whether the workplace
is free from recognized hazards and whether it complies
with OSHA standards. If there is no recognized employ-ee
representative, such as a union steward, the compli-ance
officer will interview a number of employees. The
compliance officer will expect to take photographs and
conduct tests necessary to complete the inspection. The
employer can expect the compliance officer to observe
all safety rules and practices and to preserve the confi-dentiality
of trade secret information that is identified by
the employer. Following the inspection, the compliance
officer will conduct a “ closing conference.”
Closing Conference: This closing conference is a
chance for the compliance officer to discuss the inspection
results with the employer and employee representatives.
The conference will focus on any apparent violations, the
fact that citations and penalties may be issued, and periods
of abatement for violative conditions. Rights regarding the
process and period for contesting a citation, penalty or
abatement date will also be covered. The right to request
( prior to the end of the contestment period) an informal
conference with OSH will also be explained.
Citations
Following the inspection, the inspection supervisor
will review recommendations submitted by the compli-ance
officer in his or her report. If reasonable grounds
exist to suggest the presence of a recognized hazard or
violation of an OSHA rule, regulation or standard, a
citation will be issued to the employer.
The citation must be issued within six months from
the occurrence of the alleged violation. The nature of the
alleged violation will be described “ with particularity,”
and the standard, rule, regulation or order allegedly vio-lated
will be set forth. A time period will be fixed for the
abatement of the alleged violation. The employer must
post the citation where it can be readily observed by
employees. The citation must remain posted for three
workdays or until the violation is corrected, whichever
period is longer.
Violations— Classifications
Citations issued most frequently classify violations as:
Serious: The alleged violation created the possibility
of an accident where there was the substantial probabili-ty
that serious physical harm or death could result to an
employee, and the employer knew or, with the exercise
of reasonable diligence, could have known of the alleged
violation.
Other- than- Serious (“ non- serious”): The alleged vio-lation
probably would not cause serious physical harm
or death but does relate directly or immediately to an
employee’s health or safety.
Repeated or Willful: In addition to serious or other-than-
serious, alleged violations can be classified as
“ repeated” or “ willful��� violations. Generally, a repeated
violation is a subsequent violation within a three- year
period of any standard, regulation, rule, order or clause
of the OSH Act. Generally, a willful violation is an
“ intentional and knowing” violation of any standard,
regulation, rule, order or clause of the OSH Act.
Penalties
Monetary penalties assessed by OSH and paid by
employers to the Department of Labor are civil ( as
opposed to criminal) in nature. The sums collected go
into the Civil Penalty and Forfeiture Fund.
For any alleged violation classified as serious and for
citations for the failure to post items ( such as a citation
or safety and health poster), the OSH Act requires the
assessment of a penalty. For other classifications of
employer violations and for failing to abate violations,
OSH is given the option of assessing monetary penalties.
Willful violations carry a maximum penalty of $ 70,000
and a minimum penalty of $ 5,000. Otherwise, the maxi-mum
penalty is $ 7,000. A serious violation must carry a
minimum penalty of $ 100
In practice, penalties are always assessed by OSH
for alleged violations classified as repeated, willful or
serious. Penalties for other- than- serious violations may
be assessed, but may also carry no penalty.
11
Whenever penalties are assessed, OSH considers the
gravity of the penalty, the size of the employer being
cited, and the good faith and history of the employer in
calculating the penalty amount.
Strategies to Achieve Workplace Safety and
Health Goals
OSH promotes the goal of safe and healthful work-places
by using a variety of strategies that include rule-making,
enforcement, assistance and outreach. OSH con-tinues
efforts to move forward with successful approaches
to improve workplace safety and health. OSH developed
another five- year ( 2009– 2013) strategic plan designed to
guide OSH programs and resources. OSH’s strategic
goals reflect the N. C. Department of Labor’s mission:
  Providing responsive, effective and efficient services
  Providing and encouraging quality education and
training
  Administering consistently and fairly our regulato-ry
mandates
  Enhancing public confidence in the Department of
Labor
Over the five years of this plan, OSH will focus
efforts on improving productivity in inspections and
consultations while concentrating its efforts in industries
and workplaces with safety and health problems. OSH
health and safety compliance officers inspect workplaces
based on employee complaints, workplace fatalities and
injuries, random selection, and statistical targeting.
OSH’s focus combines programmed ( computer- generat-ed
inspections are known as “ general schedule” assign-ments)
and site- specific targeting in logging, construc-tion,
long term care, lead and silica. OSH’s goal is to
increase the number of inspections conducted as well as
the number of hazards eliminated.
Summary of Strategic Plan Activities and Efforts
For fiscal year 2009, the OSH Strategic Plan refined
efforts to improve workplace safety and health through-out
the state. Primary focus was given and continues to
address the following goals included for the five- year
period ( 2009– 2013) identified:
  Reduce the construction industry fatality incidence
rate by 5 percent ( construction includes any activi-ty
performed by employers who fall under the SICs
1500– 1799).
  Decrease fatalities in logging and tree felling
( arborist) activities by 5 percent.
  Reduce the injury and illness rate in sawmills,
veneer, manufactured home ( mobile home) and
other wood products manufacturing by 15 percent.
  Reduce the days away, restricted or transferred
( DART) rate in long term care ( LTC) facilities by
15 percent.
  Conduct emphasis inspections, training and consul-tation
activity in establishments where employees
will be exposed to lead, silica, asbestos, iso-cyanates
and hexavalent chromium.
  Develop/ sustain partnerships and alliances support-ing
NCDOL mission and reduce injuries and ill-nesses
in these industries by 15 percent.
  Reduce the injury and illness rates in establish-ments
in food manufacturing by 15 percent.
Planning, Statistics and Information
Management/ Information Technology
Bureau
The Planning, Statistics and Information Manage-ment
( PSIM) Bureau provides management information
services to the OSH director and to the division’s other
bureaus. Services provided by PSIM include:
  Compilation and preparation of statistical and pro-gram
analyses for use in evaluating the efficiency
and effectiveness of the occupational safety and
health program.
  Conduct two annual surveys to collect workplace
injury and illness data.
  Disclosure of Compliance Bureau inspection files
to the public.
  Support the Compliance Bureau in developing and
maintaining inspection scheduling systems.
  Maintain inspection file storage and retrieval.
The statistical and program analysis service includes
publishing an annual report that uses statistics to compare
the performance of OSH during a three- year period.
Copies of the report, North Carolina Occupational Safety
and Health Annual Comparison Report, and other statis-tical
information are available through the organization
and on the department’s Web site, www. nclabor. com.
12
The bureau manages the maintenance of a large data-base
of employers in the state. Federal law requires
using systems that ensure the objective selection of an
employer for a safety or health inspection. State law
requires the scheduling of inspections for employers with
high rates of accidents. The bureau manages scheduling
systems based on industry classification ( construction or
agriculture for example) in order to ensure objectivity
when an employer is selected for an OSH inspection.
Two surveys are conducted annually and provide the
bureau with site specific injury and illness data that aid
in the division’s outreach effects for the employers with
rates higher than those in similar industries. The bureau
also processes for disclosure to the public any requested
OSH Compliance Bureau inspection file.
13
The N. C. General Assembly created the Occupational
Safety and Health Review Commission of North
Carolina with the Occupational Safety and Health Act of
North Carolina. The sole function of the commission is
to resolve disputes that arise under the state’s OSH Act.
In its enforcement activities, OSH is required by the
OSH Act to issue citations for alleged violations of safe-ty
and health standards. Employers who dispute citations
or challenge proposed penalties and employers and
employees who contest the length of time allowed for
correction of violations do so before the commission.
Employers have a period of 15 working days in which
to contest a citation or penalty assessment. The period
begins upon receipt of the citation or notice of penalty.
A failure to meet the deadline for contesting will result
in the citation and/ or penalty becoming final and not
subject to review by the commission or by any court.
The commission is independent. The N. C.
Department of Labor is not connected with the commis-sion.
It does not influence the commission’s decisions.
Therefore, the commission is neutral. Its governing rules
ensure that all affected persons, including employees,
are impartially heard.
At the appellate level of the commission are three
members appointed by the governor. The chairman of
the commission appoints hearing examiners who hear
and initially determine contested issues. The hearing
examiners reside in various areas of the state, so that
hearings can be conducted near an employer’s worksite
where the contested violation allegedly occurred.
Any party may ask the commission’s appellate level
to review a hearing examiner’s decision. On appeal, the
commission has the discretionary power to accept new
evidence. However, the commission will normally
restrict its review to errors attributed to a lower decision.
Both levels of the commission possess all the powers
needed to fulfill their functions. Commission proceed-ings
follow the format of the judiciary. But since many
employers appear before the commission without benefit
of a lawyer, the commission’s proceedings are less for-mal
than those of a court. All hearings are open to the
public.
An order from the appellate level of the commission
on the merits of an issue becomes final and not subject
to further review unless there is a timely appeal to the
state superior court.
14
4
The Occupational Safety and Health
Review Commission of North Carolina
§ 95- 126. Short title and legislative purpose.
( a) This Article shall be known as the “ Occupational
Safety and Health Act of North Carolina” and also may
be referred to by abbreviations as “ OSHANC.”
( b) Legislative findings and purpose:
( 1) The General Assembly finds that the burden of
employers and employees of this State result-ing
from personal injuries and illnesses arising
out of work situations is substantial; that the
prevention of these injuries and illnesses is an
important objective of the government of this
State; that the greatest hope of attaining this
objective lies in programs of research, educa-tion
and enforcement, and in the earnest coop-eration
of the federal and State governments,
employers and employees.
( 2) The General Assembly of North Carolina
declares it to be its purpose and policy through
the exercise of its powers to ensure so far as
possible every working man and woman in the
State of North Carolina safe and healthful
working conditions and to preserve our human
resources:
a. By encouraging employers and employees
in their effort to reduce the number of occu-pational
safety and health hazards at the
place of employment, and to stimulate
employers and employees to institute new
and to perfect existing programs for provid-ing
safe and healthful working conditions;
b. By providing that employers and employ-ees
have separate but dependent responsi-bilities
and rights with respect to achieving
safe and healthful working conditions;
c. By authorizing the Commissioner to devel-op
occupational safety and health standards
applicable to business giving consideration
to the needs of employers and employees
and to adopt standards promulgated from
time to time by the Secretary of Labor
under the Occupational Safety and Health
Act of 1970, and by creating a safety and
health review commission for carrying out
adjudicatory functions under this Article;
d. By building upon advances already made
through employer and employee initiative
for providing safe and healthful working
conditions;
e. By providing occupational health criteria
which will assure insofar as practicable that
no employee will suffer diminished health,
functional capacity, or life expectancy as a
result of his work experience;
f. By providing for training programs to
increase the number and competence of
personnel engaged in the field of occupa-tional
safety and health;
g. By providing an effective enforcement pro-gram
which shall include a prohibition
against giving advance notice of an inspec-tion
and sanctions for any individual violat-ing
this prohibition;
h. By providing for appropriate reporting pro-cedures
with respect to occupational safety
and health which procedures will help
achieve the objectives of this Article and
accurately describe the nature of the occu-pational
safety and health problem;
i. By encouraging joint employer employee
efforts to reduce injuries and diseases aris-ing
out of employment;
j. By providing for research in the field of
occupational safety and health, by develop-ing
innovative methods, techniques, and
approaches for dealing with occupational
safety and health problems;
k. By exploring ways to discover latent dis-eases,
establishing causal connections
between diseases and work in environmen-tal
conditions, and conducting other
research relating to health problems, in
recognition of the fact that occupational
health standards present problems often dif-ferent
from those involved in occupational
safety;
l. By authorizing the Commissioner to enter
into contracts with the Department of
Health and Human Services, or any other
State or local units, to the end the
15
5
The Occupational Safety and Health Act of North Carolina
Chapter 95, Article 16
Commissioner and the Department of
Health and Human Services and other State
or local units may fully cooperate and carry
out the ends and purposes of this Article.
m. The General Assembly of North Carolina
appoints and elects the North Carolina
Department of Labor as the designated
agency to administer the Occupational
Safety and Health Act of North Carolina.
( 1973, c. 295, s. 1; c. 476, s. 128; 1989, c.
727, s. 219( 13); 1997 443, s. 11A. 33; 2005-
133, s. 2.)
§ 95- 127. Definitions.
In this Article, unless the context otherwise requires:
( 1) The term “ Advisory Council” shall mean the
Advisory Council or body established under
this Article.
( 2) The term “ Commission” means the North
Carolina Occupational Safety and Health
Review Commission established under this
Article.
( 3) The term “ classified service” means a position
included in the State Merit System of
Personnel Administration subject to the laws,
rules and regulations of the State Personnel
Board as administered by the State Personnel
Director and as set forth in Chapter 126 of the
General Statutes.
( 4) The term “ Commissioner” means the
Commissioner of Labor of North Carolina.
( 5) The term “ days” shall mean a calendar day
unless otherwise noted.
( 6) The term “ Department” means the Department
of Labor of North Carolina.
( 7) The term “ Deputy Commissioner” means the
Deputy Commissioner of the North Carolina
Department of Labor, who is appointed by the
Commissioner to aid and assist the
Commissioner in the performance of his
duties. The Deputy Commissioner shall exer-cise
such power and authority as delegated to
him by the Commissioner.
( 8) The term “ Director” means the officer or agent
appointed by the Commissioner of Labor for
the purpose of assisting in the administration
of the Occupational Safety and Health Act of
North Carolina.
( 9) The term “ employee” means an employee of
an employer who is employed in a business or
other capacity of his employer, including any
and all business units and agencies owned
and/ or controlled by the employer.
( 10) The term “ employer” means a person engaged
in a business who has employees, including
any state or political subdivision of a state, but
does not include the employment of domestic
workers employed in the place of residence of
his or her employer.
( 11) The term “ established federal standard” means
any operative occupational safety and health
standard established by any agency of the
United States and presently in effect, or con-tained
in any act of Congress in force on the
date of enactment of this Article, and adopted
by the Secretary of Labor under the
Occupational Safety and Health Act of 1970.
( 12) The term “ federal act,��� as referred to in this
Article, means the Occupational Safety and
Health Act of 1970 ( Public Law 91 596, 91st
Congress, Act of December 29, 1970, 84 Stat.
1950).
( 13) The term “ imminent danger” means any condi-tions
or practices in any place of employment
which are such that a danger exists which
could reasonably be expected to cause death,
or serious physical harm immediately or before
the imminence of such danger can be eliminat-ed
through the enforcement procedures other-wise
provided by this Article.
( 14) The term “ issue” means an industrial, occupa-tional
or hazard grouping.
( 15) The term “ occupational safety and health
standards” means a standard which requires con-ditions,
or the adoption or use of one or more
practices, means, methods, safety devices, opera-tions
or processes reasonably necessary and
appropriate to provide safe and healthful employ-ment
and places of employment, and shall include
all occupational safety and health standards
adopted and promulgated by the Secretary which
also may be and are adopted by the State of North
Carolina under the provisions of this Article. This
term includes but is not limited to interim federal
standards, consensus standards, any proprietary
standards or permanent standards, as well as
temporary emergency standards which may be
adopted by the Secretary, promulgated as pro-vided
by the Occupational Safety and Health
Act of 1970, and which standards or regulations
are published in the Code of Federal Regulations
or otherwise properly promulgated under the
federal act or any appropriate federal agencies.
( 16) The term “ person” means one or more individ-uals,
partnerships, associations, corporations,
business trusts, legal representatives.
16
( 17) The term “ Secretary” means the United States
Secretary of Labor.
( 18) 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 adopt-ed
or are in use at such place of employment,
unless the employer did not know, and could
not, with the exercise of reasonable diligence,
know of the presence of the violation.
( 19) The term “ State” means the State of North
Carolina. ( 1973, c. 295, s. 2; 1987, c. 282, s.
14; 2005- 133, s. 3.)
§ 95- 128. Coverage.
The provisions of this Article or any standard or regu-lation
promulgated pursuant to this Article shall apply to
all employers and employees except:
( 1) The federal government, including its depart-ments,
agencies and instrumentalities;
( 2) Employees whose safety and health are subject
to protection under the Atomic Energy Act of
1954, as amended;
( 3) Employees whose safety and health are subject
to protection under the Federal Coal Mine
Health and Safety Act of 1969 ( 30 U. S. C. 801)
and the Federal Metal and Nonmetallic Mine
Safety Act ( 30 U. S. C. 725), or Subtitle V of
Title 49 of the United States Code;
( 4) Railroad employees whose safety and health
are subject to protection under Subtitle V of
Title 49 of the United States Code;
( 5) Employees engaged in all maritime operations;
( 6) Employees whose employer is within that class
and type of employment which does not permit
federal funding, on a matching basis, to the
State in return of State enforcement of all
occupational safety and health issues. ( 1973, c.
295, s. 3; 1998- 217, s. 27.)
§ 95- 129. Rights and duties of employers.
Rights and duties of employers shall include but are
not limited to the following provisions:
( 1) Each employer shall furnish to each of his
employees conditions of employment and a
place of employment free from recognized
hazards that are causing or are likely to cause
death or serious injury or serious physical
harm to his employees;
( 2) Each employer shall comply with occupational
safety and health standards or regulations pro-mulgated
pursuant to this Article;
( 3) Each employer shall refrain from any unreason-able
restraint on the right of the Commissioner
or Director, or their lawfully appointed agents,
to inspect the employer’s place of business.
Each employer shall assist the Commissioner,
the Director or the lawful agents of either or
both of them, in the performance of their
inspection duties by supplying or by making
available information, any necessary personnel
or necessary inspection aides;
( 4) Any employer, or association of employers, is
entitled to participate in the development of
standards by submission of comments on pro-posed
standards, participation in hearings on
proposed standards, or by requesting the devel-opment
of standards on a given issue under
G. S. 95- 131;
( 5) Any employer is entitled, under G. S. 95- 137, to
review of any citation issued because of his
alleged violation of any standard promulgated
under this Article, or the length of the abate-ment
period allowed for the correction of an
alleged violation;
( 6) Any employer is entitled, under G. S. 95- 137, to
a review of any penalty in the form of civil
damages assessed against him because of his
alleged violation of this Article;
( 7) Any employer is entitled, under G. S. 95- 132, to
seek an order granting a variance from any
occupational safety or health standard;
( 8) Any employer is entitled, under G. S. 95- 152, to
protection of his trade secrets and other legally
privileged communications. ( 1973, c. 295, s. 4.)
§ 95- 130. Rights and duties of employees.
Rights and duties of employees shall include but are
not limited to the following provisions:
( 1) Employees shall comply with occupational
safety and health standards and all rules, regu-lations
and orders issued pursuant to this
Article which are applicable to their own
actions and conduct.
( 2) Employees and representatives of employees
are entitled to participate in the development of
standards by submission of comments on pro-posed
standards, participation in hearings on
proposed standards, or by requesting the devel-opment
of standards on a given issue under
G. S. 95- 131.
( 3) Employees shall be notified by their employer
of any application for a temporary order granti-ng
the employer a variance from any provision
of this Article or standard or regulation pro-mulgated
pursuant to this Article.
17
( 4) Employees shall be given the opportunity to
participate in any hearing which concerns an
application by their employer for a variance
from a standard promulgated under this
Article.
( 5) Any employee who may be adversely affected
by a standard or variance issued pursuant to
this Article may file a petition for review with
the Commissioner who shall review the mat-ters
set forth and alleged in the petition.
( 6) Any employee who has been exposed or is
being exposed to toxic materials or harmful
physical agents in concentrations or at levels in
excess of that provided for by any applicable
standard shall have a right to file a petition for
review with the Commissioner who shall
investigate and pass upon same.
( 7) Subject to regulations issued pursuant to this
Article any employee or authorized representa-tive
of employees shall be given the right to
request an inspection and to consult with the
Commissioner, Director, or their agents, at the
time of the physical inspection of any work
place as provided by the inspection provision
of this Article.
( 8) to ( 10) Repealed by Session Laws 1991
( Regular Session, 1992), c. 1021, s. 2.
( 11) Any employee or representative of employees
who believes that any period of time fixed in
the citation given to his employer for correc-tion
of a violation is unreasonable has the right
to contest such time for correction by filing a
written and signed notice within 20 days from
the date the citation is posted within the estab-lishment.
( 12) Nothing in this or any other provision of this
Article shall be deemed to authorize or require
medical examination, immunization, or treat-ment
for those who object thereto on religious
grounds, except where such is necessary for
the protection of the health or safety of others.
( 1973, c. 295, s. 5; 1991 ( Reg. Sess., 1992), c.
1021, s. 2.)
§ 95- 131. Development and promulgation of
standards; adoption of federal standards and
regulations.
( a) All occupational safety and health standards pro-mulgated
under the federal act by the Secretary, and any
modifications, revision, amendments or revocations in
accordance with the authority conferred by the federal
act or any other federal act or agency relating to safety
and health and adopted by the Secretary, shall be adopt-ed
as the rules of the Commissioner of this State unless
the Commissioner decides to adopt an alternative State
rule as effective as the federal requirement and provid-ing
safe and healthful employment in places of employ-ment
as required by the federal act and standards and
regulations heretofore referred to and as provided by the
Occupational Safety and Health Act of 1970. Chapter
150B of the General Statutes governs the adoption of
rules by the Commissioner.
( b), ( c) Repealed by Session Laws 1991, c. 418, s. 8.
( d) Rules adopted under this section shall provide
insofar as possible the highest degree of safety and
health protection for employees; other considerations
shall be the latest available scientific data in the field,
the feasibility of the standard, and experience gained
under this and other health and safety laws. Whenever
practical the standards established in a rule shall be
expressed in terms of objective criteria and of the perfor-mance
desired. In establishing standards dealing with
toxic materials or harmful physical agents, the Commis-sioner,
after consultation and recommendations of the
Department of Health and Human Services, shall set a
standard which most adequately assures, to the extent
possible, on the basis of the most 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 working life.
( e) The Commissioner may not adopt State standards,
for products distributed or used in interstate commerce,
which are different from federal standards for such prod-ucts
unless the adoption of such State standard, or stan-dards,
is required by compelling local conditions and
does not unduly burden interstate commerce.
( f) Repealed by Session Laws 1991, c. 418, s. 8.
( g) Any rule, regulation, scope, or standard for agri-cultural
employers adopted or promulgated prior to July
12, 1988, that differs from the federal rule, regulation,
scope, or standard is repealed effective September 1,
1989, unless readopted pursuant to Chapter 150B of the
General Statutes. ( 1973, c. 295, s. 6; c. 476, s. 128;
1975, 2nd Sess., c. 983, s. 81; 1987, c. 285, s. 17; 1987
( Reg. Sess., 1988), c. 1111, ss. 7, 8; 1989, c. 727, s.
219( 14); 1991, c. 418, s. 8; 1997- 443, s. 11A. 34.)
§ 95- 132. Variances.
( a) Temporary Variances.—
( 1) The Commissioner may upon written applica-tion
by an employer issue an order granting
such employer a temporary variance from stan-dards
adopted by this Article or promulgated
by the Commissioner under this Article. Any
such order shall prescribe the practices, means,
18
methods, operations and processes which the
employer must adopt or use while the variance
is in effect and state in detail a program for
coming into compliance with the standard.
( 2) An application for a temporary variance shall
contain all information required as enumerated
in 29 C. F. R. 1905.10( b) which is hereby incor-porated
by reference, as if herein fully set out.
( 3) Upon receipt of an application for an order
granting a temporary variance, the
Commissioner to whom such application is
addressed may issue an interim order granting
such a temporary variance, for the purpose of
permitting time for an orderly consideration of
such application. No such interim order may be
effective for longer than 180 days.
( 4) Such a temporary variance may be granted
only after notice to employees and interested
parties and opportunity for hearing. The tem-porary
variance may be for a period of no
longer than required to achieve compliance or
one year, whichever is shorter, and may be
renewed only once. Application for renewal of
a variance must be filed in accordance with
provisions in the initial grant of the temporary
variance.
( 5) An order granting a temporary variance shall
be issued only if the employer establishes
a. ( i) That he is unable to comply with the
standard by the effective date because of
unavailability of professional or technical
personnel or materials and equipment
required or necessary construction or alter-ation
of facilities or technology, ( ii) that all
available steps have been taken to safe-guard
his employees against the hazards
covered by the standard, and ( iii) that he
has an effective program for coming into
compliance with the standard as quickly as
practicable, or
b. That he is engaged in an experimental pro-gram
as described in subsection ( c) of this
section as hereinafter stated.
( b) Permanent Variances.—
( 1) Any affected employer may apply to the
Commissioner for a rule or order for a perma-nent
variance from a standard promulgated
under this section. Affected employees shall be
given notice of each such application and an
opportunity to participate in a hearing. The
Commissioner shall issue such rule or order if he
determines on the record, after opportunity for
an inspection where appropriate and a hearing,
that the proponent of the variance has demon-strated
by a preponderance of the evidence that
the conditions, practices, means, methods, opera-tions,
or processes used or proposed to be used
by an employer will provide employment and
places of employment to his employees which
are as safe and healthful as those which would
prevail if he complied with the standard.
( 2) The rule or order so issued shall prescribe the
conditions the employer must maintain, and
the practices, means, methods, operations, and
processes which he must adopt and utilize to
the extent they differ from the standard in
question.
( 3) Such a rule or order may be modified or
revoked upon application by an employer,
employees, or by the Commissioner on his
own motion, in the manner prescribed for its
issuance under this subsection at any time after
six months from its issuance.
( c) Experimental Variances.— The Commissioner is
authorized to grant a variance from any standard or por-tion
thereof whenever he determines that such variance
is necessary to permit an employer to participate in an
experiment approved by him designed to demonstrate or
validate new and improved techniques to safeguard the
health or safety of workers. ( 1973, c. 295, s. 7; 1997-
456, s. 27.)
§ 95- 133. Office of Director of Occupational Safety
and Health; powers and duties of the Director.
( a) There is hereby created and established in the North
Carolina Department of Labor a division to be known as
the Occupational Safety and Health Division. The
Commissioner shall appoint a Director to administer this
division who shall be subject to the direction and supervi-sion
of the Commissioner. The Director shall carry out the
responsibilities of the State of North Carolina as pre-scribed
under the Occupational Safety and Health Act of
1970, and any subsequent federal laws or regulations
relating to occupational safety and health, and this Article,
as written, revised or amended by legislative enactment
and as delegated or authorized by the Commissioner. The
Commissioner shall make and promulgate such rules,
amendments, or revisions in rules, as he may deem advis-able
for the administration of the office, he shall also
accept and use the services, facilities, and personnel of
any agency of the State or of any subdivision of State
government, either as a free service or by reimbursement.
The Director shall devote full time to his duties of office
and shall not hold any other office. The Director, subject
to the approval of the Commissioner, shall select a profes-sional
staff of qualified and competent employees to assist
19
in the statewide administration of the Article. All of the
employees referred to herein shall be under the classified
service, as herein defined in G. S. 95 127, subdivision ( 3).
( b) Subject to the general supervision of the
Commissioner and Deputy Commissioner, the Director
shall be responsible for the administration and enforce-ment
of all laws, rules and regulations which it is the duty
of the Division to administer and enforce. The Director
shall have the power, jurisdiction and authority to:
( 1) Uniformly superintend, enforce and administer
applicable occupational safety and health laws
of the State of North Carolina;
( 2) Make or cause to be made all necessary inspec-tions,
analyses and research for the purpose of
seeing that all laws and rules and regulations
which the office has the duty, power and
authority to enforce are promptly and effec-tively
carried out;
( 3) Make all necessary investigations, develop
information and reports upon conditions of
employee safety and health, and upon all mat-ters
relating to the enforcement of this Article
and all lawful regulations issued thereunder;
( 4) Report to the Federal Occupational Safety and
Health Administration any information which
it may require;
( 5) Recommend to the Commissioner such rules,
regulations, standards, or changes in rules, reg-ulations
and standards which the Director
deems advisable for the prevention of acci-dents,
occupational hazards or the prevention
of industrial or occupational diseases;
( 6) Recommend to the Commissioner that he insti-tute
proceedings to remove from his or her
position any employee of the Office who
accepts any favor, privilege, money, object of
value, or property of any kind whatsoever or
who shall give prior notice of a compliance
inspection of a work place unless authorized
under the provisions of this Article;
( 7) Employ experts, consultants or organizations
for work related to the occupational safety and
health program of the Division and compensate
same with the approval of the Commissioner;
( 8) Institute hearings, investigations, request the
issuance of citations and propose such penal-ties
as he may in his judgment consider neces-sary
to carry out the provisions of this Article;
( 9) The Commissioner shall have the power and
authority to issue all types of notices, citations,
cease and desist orders, or any other pleading,
form or notice necessary to enforce compliance
with this Article as hereinafter set forth. The
Commissioner is also empowered and autho-rized
to apply to the courts of the State having
jurisdiction for orders or injunctions restrain-ing
unlawful acts and practices prohibited by
this Article or not in compliance with this
Article and to apply for mandatory injunctions
to compel enforcement of the Article, and the
Commissioner is authorized, and further autho-rized
by and through his agents, to institute
criminal actions or proceedings for such viola-tions
of the Article as are subject to criminal
penalties. The Director shall recommend to the
Commissioner the imposition and amount of
civil penalties provided by this Article, and the
Commissioner may institute such proceedings
as necessary for the enforcement and payment
of such civil penalties subject to such review of
the Commission as hereinafter set forth.
( 10) The Director may recommend to the
Commissioner that any person, firm, corpora-tion
or witness be cited for contempt or for
punishment as of contempt, and the
Commissioner is authorized to enter any order
of contempt or as of contempt as he may deem
proper and necessary, and any hearing examin-er
may recommend to the Commissioner that
such order or citation for contempt be made.
( 11) The Commissioner or the Director, or their
authorized agents, shall have the power and
authority to issue subpoenas for witnesses and
for the production of any and all papers and
documents necessary for any hearing or other
proceeding and to require the same to be
served by the process officers of the State. The
Commissioner and the Director may adminis-ter
any and all oaths that are necessary in the
enforcement of this Article and may certify as
to the authenticity of all records, papers, docu-ments
and transcripts under the seal of the
Department of Labor.
( 12) All orders, citations, cease and desist orders,
stop orders, sanctions and contempt orders,
civil penalties and the proceedings thereon
shall be subject to review by the Commission
as hereinafter provided, including all assess-ments
for civil penalties. ( 1973, c. 295, s. 8;
2005- 133, s. 4.)
§ 95- 134. Advisory Council.
( a) There is hereby established a State Advisory
Council on Occupational Safety and Health consisting of
11 members, appointed by the Commissioner, composed
of three representatives from management, three repre-sentatives
from labor, four representatives of the public
20
sector with knowledge of occupational safety and occu-pational
health professions and one representative of the
public sector with knowledge of migrant labor. The
Commissioner shall designate one of the members from
the public sector as chairman and all members of the
State Advisory Council shall be selected insofar as pos-sible
upon the basis of their experience and competence
in the field of occupational safety and health
( b) The Council shall advise, consult with, and make
recommendations to the Commissioner on matters relat-ing
to the administration of this Article. The Council
shall hold no fewer than two meetings during each cal-endar
year. All meetings of the Advisory Council shall
be open to the public and a transcript shall be kept and
made available for public inspection.
( c) The Director shall furnish to the Advisory Council
such secretarial, clerical and other services as he deems
necessary to conduct the business of the Advisory
Council. The members of the Advisory Council shall be
compensated for reasonable expenses incurred, includ-ing
necessary time spent in traveling to and from their
place of residence within the State to the place of meet-ing,
and mileage and subsistence as allowed to State
officials. The members of the Advisory Council shall be
compensated in accordance with Chapter 138 of the
General Statutes.
( d) In addition to its other duties, the Advisory
Council shall assist the Commissioner in formulating
and setting standards under the provisions of this
Article. For this purpose the Commissioner may appoint
persons qualified by experience and affiliation to present
the viewpoint of the employers involved, persons simi-larly
qualified to present the viewpoint of the workers
involved, and some persons to represent the health and
safety agencies of the State. The Commissioner for this
purpose may include representatives or professional
organizations of technicians or professionals specializ-ing
in occupational safety or health. Such persons
appointed for temporary purposes may be paid such per
diem and expenses of attending meetings as provided in
Chapter 138 of the General Statutes. ( 1973, c. 295, s. 9;
1977, c. 806; 1983, c. 717, ss. 17, 18.)
§ 95 135. North Carolina Occupational Safety and
Health Review Commission.
( a) The North Carolina Occupational Safety and
Health Review Commission is hereby established. The
Commission shall be composed of three members from
among persons who, by reason of training, education or
experience, are qualified to carry out the functions of the
Commission under this Article. The Governor shall
appoint the members of the Commission and name one
of the members as chairman of the Commission. The
terms of the members of the Commission shall be six
years except that the members of the Commission first
taking office shall serve, as designated by the Governor
at the time of appointment, one for a term of two years,
one for a term of four years, and the member of the
Commission designated as chairman shall serve for a
term of six years. Any vacancy caused by the death, res-ignation,
or removal of a member prior to the expiration
of the term for which he was appointed shall be filled by
the Governor for the remainder of the unexpired term.
The Governor shall fill all vacancies occurring by reason
of the expiration of the term of any members of the
Commission.
( b) The Commission shall hear and issue decisions on
appeals entered from citations and abatement periods
and from all types of penalties. Appeals from orders of
the Director dealing with conditions or practices that
constitute imminent danger shall not be stayed by the
Commission until after full and adequate hearing. The
Commission in the discharge of its duties under this
Article is authorized and empowered to administer oaths
and affirmations and institute motions, cause the taking
of depositions, interrogatories, certify to official acts,
and issue subpoenas to compel the attendance of wit-nesses
and the production of books, papers, correspon-dence,
memoranda, and other records deemed necessary
as evidence in connection with any appeal or proceeding
for review before the Commission.
( c) The Commission shall meet at least once each cal-endar
quarter but it may hold call meetings or hearings
upon at least three days’ notice to each member by the
chairman and at such time and place as the chairman
may fix. The chairman shall be responsible on behalf of
the Commission for the administrative operations of the
Commission and shall appoint such hearing examiners
and other employees as he deems necessary to assist in
the performance of the Commission’s functions and fix
the compensation of such employees with the approval
of the Governor. The assignment and removal of hearing
examiners shall be made by the Commission, and any
hearing examiner may be removed for misfeasance,
malfeasance, misconduct, immoral conduct, incompe-tency,
the commission of any crime, or for any other
good and adequate reason as found by the Commission.
The Commission shall give notice to such hearing exam-iner,
along with written allegations as to the charges
against him, and the same shall be heard by the
Commission, and its decision shall be final. The com-pensation
of the members of the Commission shall be on
a per diem basis and shall be fixed by the Governor. The
chairman of the Commission may be paid a higher rate
of compensation than the other two members of the
Commission. For the purpose of carrying out its duties
21
and functions under this Article, two members of the
Commission shall constitute a quorum and official
action can be taken only on the affirmative vote of at
least two members of the Commission. On matters prop-erly
before the Commission the chairman may issue
temporary orders, subpoenas, and other temporary types
of orders subject to the subsequent review of the
Commission. The issuance of subpoenas, orders to take
depositions, orders requiring interrogatories and other
procedural matters of evidence issued by the chairman
shall not be subject to review.
( d) Every official act of the Commission shall be
entered of record and its hearings and records shall be
open to the public. The Commission is authorized and
empowered to make such procedural rules as are neces-sary
for the orderly transaction of its proceedings.
Unless the Commission adopts a different rule, the pro-ceedings,
as nearly as possible, shall be in accordance
with the Rules of Civil Procedure, G. S. 1A 1. The
Commission may order testimony to be taken by deposi-tion
in any proceeding pending before it at any stage of
such proceeding. Any person, firm or corporation, and
its agents or officials, may be compelled to appear and
testify and produce like documentary evidence before
the Commission. Witnesses whose depositions are taken
under this section, and the persons taking such deposi-tions,
shall be entitled to the same fees as are paid for
like services in the courts of the State.
( e) The rules of procedure prescribed or adopted by
the Commission shall provide affected employees or
representatives of affected employees an opportunity to
participate as parties to hearings under this section.
( f) Any member of the Commission may be removed
by the Governor for inefficiency, neglect of duty, or any
misfeasance or malfeasance in office. Before such
removal the Governor shall give notice of hearing and
state the allegations against the member of the
Commission, and the same shall be heard by the
Governor, and his decision shall be final. The principal
office of the Commission shall be in Raleigh, North
Carolina, but whenever it deems that the convenience of
the public or of the parties may be promoted, or delay or
expense may be minimized, the Commission may hold
hearings or conduct other proceedings at any place in the
State.
( g) In case of a contumacy, failure or refusal of any
person to testify before the Commission, give any type
of evidence, or to produce any books, records, papers,
correspondence, memoranda or other records, such per-son
upon such failure to obey the orders of the
Commission may be punished for contempt or any other
matter involving contempt as set forth and described by
the general laws of the State. The Commission shall
issue no order for contempt without first finding the
facts involved in the proceeding. Witnesses appearing
before the Commission shall be entitled to the same fees
as those paid for the services of said witnesses in the
courts of the State, and all such fees shall be taxed
against the interested parties according to the judgment
and discretion of the Commission.
( h) The Director shall consult with the chairman of
the Board with respect to the preparation and presenta-tion
to the Commission for adoption of all necessary
forms or citations, notices of all kinds, forms of stop
orders, all forms and orders imposing penalties and all
forms of notices or applications for review by the
Commission, and any and all other procedural papers
and documents necessary for the administration of the
Article as applied to employers and employees and for
all procedures and proceedings brought before the
Commission for review.
( i) A hearing examiner appointed by the chairman of
the Commission shall hear, and make a determination
upon, any proceeding instituted before the Commission
and may hear any motion in connection therewith,
assigned to the hearing examiner, and shall make a
report of the determination which constitutes the hearing
examiner’s final disposition of the proceedings. A copy
of the report of the hearing examiner shall be furnished
to the Director and all interested parties involved in any
appeal or any proceeding before the hearing examiner
for the hearing examiner’s determination. The report of
the hearing examiner shall become the final order of the
Commission 30 days from the date of the report as
determined by the hearing examiner, unless within the
30 day period any member of the Commission had
directed that the report shall be reviewed by the entire
Commission as a whole. Upon application for review of
any report or determination of a hearing examiner,
before the 30 day period expires, the Commission shall
schedule the matter for hearing, on the record, except the
Commission may allow the introduction of newly dis-covered
evidence, or in its discretion the taking of fur-ther
evidence upon any question or issue. All interested
parties to the original hearing shall be notified of the
date, time and place of the hearing and shall be allowed
to appear in person or by attorney at the hearing. Upon
review of the report and determination by the hearing
examiner the Commission may adopt, modify or vacate
the report of the hearing examiner and notify the inter-ested
parties. The report of the hearing examiner, and the
report, decision, or determination of the Commission
upon review shall be in writing and shall include find-ings
of fact, conclusions of law, and the reasons or bases
for them, on all the material issues of fact, law, or discre-
22
tion presented on the record. The report, decision or
determination of the Commission upon review shall be
final unless further appeal is made to the courts under
the provisions of Chapter 150B of the General Statutes,
as amended, entitled: “ Judicial Review of Decisions of
Certain Administrative Agencies.
( j) Repealed by Session Laws 1993, c. 300, s. 1.
( 1973, c. 295, s. 10; c. 1331, s. 3; 1985 ( Reg. Sess.,
1986), c. 955, ss. 6, 7; 1987, c. 827, s. 1; 1987 ( Reg.
Sess., 1988), c. 1111, s. 10; 1993, c. 300, s. 1; c. 474, s.
1; 2005- 133, s. 5.; 2006- 203, s. 21)
§ 95- 136. Inspections.
( a) In order to carry out the purposes of this Article,
the Commissioner or Director, or their duly authorized
agents, upon presenting appropriate credentials to the
owner, operator, or agent in charge, are authorized:
( 1) To enter without delay, and at any reasonable
time, any factory, plant, establishment, con-struction
site, or other area, work place or envi-ronment
where work is being performed by an
employee of an employer; and
( 2) To inspect and investigate during regular work-ing
hours, and at other reasonable times, and
within reasonable limits, and in a reasonable
manner, any such place of employment and all
pertinent conditions, processes, structures,
machines, apparatus, devices, equipment, and
materials therein, and to question privately any
such employer, owner, operator, agent or
employee.
( 3) The Commissioner or Director, or their duly
authorized agents, shall reinspect any place of
employment where a willful serious violation
was found to exist during the previous inspec-tion
and a final Order has been entered.
( b) In making his inspections and investigations under
this Article, the Commissioner may issue subpoenas to
require the attendance and testimony of witnesses and
the production of evidence under oath. Witnesses shall
be reimbursed for all travel and other necessary expens-es
which shall be claimed and paid in accordance with
the prevailing travel regulations of the State. In case of a
failure or refusal of any person to obey a subpoena
under this section, the district judge or superior court
judge of the county in which the inspection or investiga-tion
is conducted shall have jurisdiction upon the appli-cation
of the Commissioner to issue an order requiring
such person to appear and testify or produce evidence as
the case may require, and any failure to obey such order
of the court may be punished by such court as contempt
thereof.
( c) Subject to regulations issued by the Commissioner
a representative of the employer and an employee autho-rized
by the employees shall be given an opportunity to
consult with or to accompany the Commissioner,
Director, or their authorized agents, during the physical
inspection of any work place described under subsection
( a) for the purpose of aiding such inspection. Where
there is no authorized employee representative, the
Commissioner, Director, or their authorized agents, shall
consult with a reasonable number of employees concern-ing
matters of health and safety in the work place.
( d)( 1) Any employees or an employee representative
of the employees who believe that a violation
of a safety or health standard exists that threat-ens
physical harm, or that an imminent danger
exists, may request an inspection by giving
notice of such violation or danger to the
Commissioner or Director. Any such notice
shall be reduced to writing, shall set forth with
reasonable particularity the grounds for the
notice, and shall be signed by employees or the
employee representatives of the employees,
and a copy shall be provided the employer or
his agent no later than at the time of inspection.
Upon the request of the person giving such
notice, his name and the names of individual
employees referred to therein shall not appear
in such copy of any record published, released
or made available pursuant to subsection ( e) of
this section. If upon receipt of such notification
the Commissioner or Director determines there
are reasonable grounds to believe that such
violation or danger exists, the Commissioner
or Director or their authorized agents shall
promptly make a special investigation in accor-dance
with the provisions of this section as
soon as practicable to determine if such viola-tion
or danger exists. If the Commissioner or
Director determines there are not reasonable
grounds to believe that a violation or danger
exists he shall notify the employees or repre-sentatives
of the employees, in writing, of such
determination.
( 2) Prior to, during and after any inspection of a
work place, any employees or representative of
employees employed in such work place may
notify the inspecting Commissioner, Director,
or their agents, in writing, of any violation of
this Article which they have reason to believe
exists in such work place. The Commissioner
shall, by regulation, establish procedures for
informal review of any refusal by a representa-tive
of the Commissioner or Director to issue a
23
citation with respect to any such alleged viola-tion
and shall furnish the employees or repre-sentatives
of employees requesting such
review a written statement of the reason for the
Commissioner’s or Director’s final disposition
of the case.
( e) The Commissioner is authorized to compile, ana-lyze,
and publish, in summary or detailed form, all
reports or information obtained under this section. Files
and other records relating to investigations and enforce-ment
proceedings pursuant to this Article shall not be
subject to inspection and examination as authorized by
G. S. 132- 6 while such investigations and proceedings
are pending, except that, subject to the provisions of
subsection ( e1) of this section, an employer cited under
the provisions of this Article is entitled to receive a copy
of the official inspection report which is the basis for
citations received by the employer following the
issuance of citations.
( e1) Upon the written request of and at the expense of
the requesting party, official inspection reports of
inspections conducted pursuant to this Article shall be
available for release in accordance with the provisions
contained in this subsection and subsection ( e) of this
section. The names of witnesses or complainants, and
any information within statements taken from witnesses
or complainants during the course of inspections or
investigations conducted pursuant to this Article that
would name or otherwise identify the witnesses or com-plainants,
shall not be released to any employer or third
party and shall be redacted from any copy of the official
inspection report provided to the employer or third party.
Witness statements that are in the handwriting of the
witness or complainant shall, upon the request of and at
the expense of the requesting party, be transcribed so
that information that would not name or otherwise iden-tify
the witness may be released. A witness or com-plainant
may, however, sign a written release permitting
the Commissioner to provide information specified in
the release to any persons or entities designated in the
release. Nothing in this section shall be construed to pro-hibit
the use of the name or statement of a witness or
complainant by the Commissioner in enforcement pro-ceedings
or hearings held pursuant to this Article. The
Commissioner shall make available to the employer 10
days prior to a scheduled enforcement hearing unredact-ed
copies of: ( i) the witness statements the
Commissioner intends to use at the enforcement hearing,
( ii) the statements of witnesses the Commissioner
intends to call to testify, or ( iii) the statements of wit-nesses
whom the Commissioner does not intend to use
that might support an employer’s affirmative defense or
otherwise exonerate the employer; provided a written
request for the statement or statements is received by the
Commissioner no later than 12 days prior to the enforce-ment
hearing. If the request for an unredacted copy of
the witness statement or statements is received less than
12 days before a hearing, the statement or statements
shall be made available as soon as practicable. The
Commissioner may permit the use of names and state-ments
of witnesses and complainants and information
obtained during the course of inspections or investiga-tions
conducted pursuant to this Article by public offi-cials
in the performance of their public duties.
( f)( 1) Inspections conducted under this section shall
be accomplished without advance notice, sub-ject
to the exception in subdivision ( 2) below
this subsection.
( 2) The Commissioner or Director may authorize
the giving to any employer or employee
advance notice of an inspection only when the
giving of such notice is essential to the effec-tiveness
of such inspection, and in keeping
with regulations issued by the Commissioner.
( g) The Commissioner shall prescribe such rules and
regulations as he may deem necessary to carry out his
responsibilities under this Article, including rules and
regulations dealing with the inspection of an employer’s
establishment. ( 1973, c. 295, s. 11; 1993, c. 317, ss. 1, 2;
1999- 364, ss. 1, 2; 2003- 174, s. 1.)
§ 95- 136.1. Special emphasis inspection program.
( a) As used in this section, a “ special emphasis
inspection” is an inspection by the Department’s occupa-tional
safety and health division that is scheduled
because of an employer’s high frequency of violations of
safety and health laws or because of an employer’s high
risk or high rate of work- related fatalities or work- relat-ed
serious injuries or illnesses.
( b) The Department shall develop and implement a
special emphasis inspection program that targets for spe-cial
emphasis inspection employers who:
( 1) Have a high rate of serious or willful violations
of any standard, rule, order, or other require-ment
under this Article, or of regulations pre-scribed
pursuant to the Federal Occupational
Safety and Health Act of 1970, in a one- year
period;
( 2) Have a high rate of work- related deaths, or a
high rate of work- related serious injuries or ill-nesses,
in a one- year period;
( 3) Are engaged in a type of industry determined
by the Department to be at high risk for serious
or fatal work- related injuries or illnesses; or
( 4) Repealed by Session Laws 1997- 443, s. 17( b).
24
To identify an employer for a special emphasis
inspection, the Department shall use the most current
data available from its own database and from other
sources, including State departments, divisions, boards,
commissions, and other State entities. The Department
shall ensure that every employer targeted for a special
emphasis inspection is inspected at least one time within
the two- year period following targeting of the employer
by the Department. The Department shall update its spe-cial
emphasis inspection records at least annually.
( c) The Director shall make information about the
special emphasis inspection program available prior to
the date of implementation of the program.
( d) The Department shall by March 1, 1995, and
annually thereafter, report to the Joint Legislative
Commission on Governmental Operations and the Fiscal
Research Division of the General Assembly on the
impact of the special emphasis inspection program on
safety and health compliance and enforcement. ( 1991
( Reg. Sess., 1992), c. 924, s. 1; 1997- 443, s. 17( b).)
§ 95- 137. Issuance of citations.
( a) If, upon inspection or investigation, the Director
or his authorized representative has reasonable grounds
to believe that an employer has not fulfilled his duties as
prescribed in this Article, or has violated any standard,
regulation, rule or order promulgated under this Article,
he shall with reasonable promptness issue a citation to
the employer. Each citation shall be in writing and shall
describe with particularity the nature of the violation,
including a reference to the provisions of the act, stan-dards,
rules and regulations, or orders alleged to have
been violated. In addition, the citation shall fix a reason-able
time for the abatement of the violation. The
Director may prescribe procedures for the issuance of a
notice in lieu of a citation with respect to de minimus
violations which have no direct or immediate relation-ship
to safety or health. Each citation or notice in lieu of
citation issued under this section, or a copy or copies
thereof, shall be prominently posted, as prescribed in
regulations issued by the Director, at or near such place
a violation referred to in the citation occurred.
( b) Procedure for Enforcement.—
( 1) If, after an inspection or investigation, the
Director issues a citation under any provisions of
this Article, the Director shall, within a reason-able
time after the termination of such inspection
or investigation, notify the employer by certified
mail with return receipt, by signature confirma-tion
as provided by the U. S. Postal Service, by a
designated delivery service authorized pursuant
to 26 U. S. C. § 7502( f)( 2) with delivery receipt,
or via hand delivery of any penalty, if any, the
Director has recommended to the Commissioner
to be proposed under the provisions of this
Article and that the employer has 15 working
days within which to notify the Director that the
employer wishes to:
a. Contest the citation or proposed assessment
of penalty; or
b. Request an informal conference.
Following an informal conference, unless the
employer and Department have entered into a
settlement agreement, the Director shall send
the employer an amended citation or notice of
no change. The employer has 15 working days
from the receipt of the amended citation or
notice of no change to notify the Director that
the employer wishes to contest the citation or
proposed assessment of penalty, whether or not
amended. If, within 15 working days from the
receipt of the notice issued by the Director, the
employer fails to notify the Director that the
employer requires an informal conference to be
held or intends to contest the citation or pro-posed
assessment of penalty, and no notice is
filed by any employee or representative of
employees under the provisions of this Article
within such time, the citation and the assess-ment
as proposed to the Commissioner shall be
deemed final and not subject to review by any
court.
( 2) If the Director has reason to believe that an
employer has failed to correct a violation for
which a citation has been issued within the
period permitted for its correction ( which peri-od
shall not begin to run until the entry of a
final order by the Commission in case of any
review proceedings under this Article initiated
by the employer in good faith and not solely
for a delay or avoidance of penalties), the
Director shall notify the employer by certified
mail with return receipt, by signature confir-mation
as provided by the U. S. Postal Service,
by a designated delivery service authorized
pursuant to 26 U. S. C. § 7502( f)( 2) with deliv-ery
receipt, or via hand delivery of such failure
and of the penalty proposed to be assessed
under this Article by reason of such failure and
that the employer has 15 working days within
which to notify the Director that the employer
wishes to contest the Director’s notification of
the proposed assessment of penalty. If, within
15 working days from the receipt of notifica-tion
issued by the Director, an employer fails
to notify the Director that the employer intends
25
to contest the notification or proposed recom-mendation
of penalty, the notification and the
proposed assessment made by the Director
shall be final and not subject to review by any
court.
( 3) No citation may be issued under this section
after the expiration of six months following the
occurrence of any violation.
( 4) If an employer notifies the Director that the
employer intends to contest a citation issued
under the provisions of this Article or notifica-tion
issued under the provisions of this Article,
or if, within 15 working days of the receipt of a
citation under this Article, any employee or
representative thereof files a notice with the
Director alleging that the period of time fixed
in the citation for the abatement of the viola-tion
is unreasonable, the Director shall imme-diately
advise the Commission of such notifi-cation,
and the Commission shall afford an
opportunity for a hearing. The Commission
shall thereafter issue an order, based on find-ings
of fact, affirming, modifying, or vacating
the Director’s citation or the proposed penalty
fixed by the Commissioner, or directing other
appropriate relief, and such order shall become
final 30 days after its issuance. Upon showing
by an employer of a good faith effort to com-ply
with the abatement requirements of a cita-tion,
and that an abatement has not been com-pleted
because of factors beyond the employ-er’s
reasonable control, the Director, after an
opportunity for a hearing as provided in this
Article, shall issue an order affirming or modi-fying
the abatement requirements in such cita-tion.
The rules of procedure prescribed by the
chairman of the Commission shall provide
affected employees or representatives of affect-ed
employees an opportunity to participate as
parties to hearings under this section.
( 5) Repealed by Session Laws 1993, c. 300, s. 2.
( 6) Each local unit of government shall report each
violation for which it is issued a citation to its
local governing board at its next public meeting
and to its workers compensation insurance carri-er
or to the risk pool of which it is a member
pursuant to Article 23 of Chapter 58 of the
General Statutes. ( 1973, c. 295, s. 12; 1987 ( Reg.
Sess., 1988), c. 1111, s. 11; 1991 ( Reg. Sess.,
1992), c. 1020, ss. 2, 3; 1993, c. 300, s. 2; 2003
308, s. 6; 2005- 133, § . 6, 7; 2007- 231, s. 10.)
§ 95- 138. Civil penalties.
( a) The Commissioner, upon recommendation of the
Director, or the North Carolina Occupational Safety and
Health Review Commission in the case of an appeal,
shall have the authority to assess penalties against any
employer who violates the requirements of this Article,
or any standard, rule, or order adopted under this
Article, as follows:
( 1) A minimum penalty of five thousand dollars
($ 5,000) to a maximum penalty of seventy
thousand dollars ($ 70,000) may be assessed for
each willful or repeat violation.
( 2) A penalty of up to seven thousand dollars
($ 7,000) shall be assessed for each serious vio-lation,
except that a penalty of up to fourteen
thousand dollars ($ 14,000.00) shall be assessed
for each serious violation that involves injury
to an employee under 18 years of age.
( 2a) A penalty of up to seven thousand dollars
($ 7,000) may be assessed for each violation
that is adjudged not to be of a serious nature.
( 3) A penalty of up to seven thousand dollars
($ 7,000) may be assessed against an employer
who fails to correct and abate a violation, with-in
the period allowed for its correction and
abatement, which period shall not begin to run
until the date of the final Order of the
Commission in the case of any appeal proceed-ings
in this Article initiated by the employer in
good faith and not solely for the delay of
avoidance of penalties. The assessment shall
be made to apply to each day during which the
failure or violation continues.
( 4) A penalty of up to seven thousand dollars
($ 7,000) shall be assessed for violating the
posting requirements, as required under the
provisions of this Article.
( b) The Commissioner shall adopt uniform standards
that the Commissioner, the Commission, and the hearing
examiner shall apply when determining appropriateness
of the penalty. The following factors shall be used in
determining whether a penalty is appropriate:
( 1) Size of the business of the employer being
charged.
( 2) The gravity of the violation.
( 3) The good faith of the employer.
( 4) The record of previous violations; provided
that for purposes of determining repeat viola-tions,
only the record within the previous three
years is applicable.
26
( 5) Whether the violation involves injury to an
employee under 18 years of age.
The report of the hearing examiner and the report,
decision, or determination of the Commission on appeal
shall specify the standards applied in determining the
reduction or affirmation of the penalty assessed by the
Commissioner.
( c) The clear proceeds of all civil penalties and interest
recovered by the Commissioner, together with the costs
thereof, shall be remitted to the Civil Penalty and
Forfeiture Fund in accordance with G. S. 115C 457.2.
( 1973, c. 295, s. 13; 1987 ( Reg. Sess., 1988), c. 1111, s.
12; 1989 ( Reg. Sess., 1990), c. 844; 1991, c. 329, s. 1; c.
761, s. 17; 1993, c. 474, s. 2; 1998 215, s. 111; 2004 203,
s. 39( a); 2005- 133, s. 8; 2006- 39, s. 3; 2009- 351, s. 4.)
§ 95- 139. Criminal penalties.
( a) Any employer who willfully violates any standard,
rule, regulation or order promulgated pursuant to the
authority of this Article, and the violation causes the
death of any employee 18 years of age or older, shall be
guilty of a Class 2 misdemeanor, which may include a
fine of not more than ten thousand dollars ($ 10,000).
( b) Any employer who willfully violates any stan-dard,
rule, regulation, or order promulgated pursuant to
the authority of this Article, and the violation causes the
death of any employee under 18 years of age, shall be
guilty of a Class 2 misdemeanor, which may include a
fine of not more than twenty thousand dollars ($ 20,000).
( c) If an employer is convicted of more than one vio-lation
of subsection ( a) or ( b) of this section, the subse-quent
violation shall be penalized as follows:
( 1) The employer shall be guilty of a Class 1 mis-demeanor
which may include a fine of not
more than twenty- thousand dollars ($ 20,000) if
the subsequent violation results in the death of
an employee 18 years of age or older.
( 2) The employer shall be guilty of a Class 1 mis-demeanor
which may include a fine of not
more than forty thousand dollars ($ 40,000) if
the subsequent violation results in the death of
an employee under 18 years of age.
( d) This section shall not prevent any prosecuting
officer of the State of North Carolina from proceeding
against such employer on a prosecution charging any
degree of willful or culpable homicide. Any person who
gives advance notice of any inspection to be conducted
under this Article, without authority from the
Commissioner, Director, or any of their agents to whom
such authority has been delegated, shall be guilty of a
Class 2 misdemeanor.
( e) Whoever knowingly makes any false statement,
representation, or certification in any application, record,
report, plan, or any other document filed or required to
be maintained pursuant to this Article, shall be guilty of
a Class 2 misdemeanor, which may include a fine of ( i)
not more than ten thousand dollars ($ 10,000) for falsifi-cations
pertaining to employees 18 years of age or older
or ( ii) not more than twenty thousand dollars ($ 20,000)
for falsifications pertaining to employees under 18 years
of age.
( f) Whoever shall commit any kind of assault upon or
whoever kills a person engaged in or on account of the
performance of investigative, inspection, or law enforce-ment
functions shall be subject to prosecution under the
general criminal laws of the State and upon such charges
as the proper prosecuting officer shall charge or allege.
( 1973, c. 295, s. 14; 1993, c. 539, s. 671; 1994, Ex.
Sess., c. 24, s. 14( c); 2009- 351, s. 5.)
§ 95 140. Procedures to counteract imminent dangers.
( a) The superior courts of this State shall have juris-diction,
upon petition of the Commissioner, to restrain
any conditions or practices in any place of employment
which are such that a danger exists, which could reason-ably
be expected to cause death or serious physical harm
immediately or before the imminence of such danger
can be eliminated through the enforcement procedures
otherwise provided by this Article. Any order issued
under this section may require such steps to be taken as
may be necessary to avoid, correct, or remove such
imminent danger and prohibit the employment or pres-ence
of any individual in locations or under conditions
where such imminent danger exists, except those indi-viduals
whose presence is necessary to avoid, correct or
remove such imminent danger or to maintain the capaci-ty
of a continuous process operation to assume normal
operations without a complete cessation of operations,
or where a cessation of operations is necessary to permit
such to be accomplished in a safe and orderly manner.
( b) Upon the filing of any such petition the superior
court shall, without the necessity of showing an ade-quate
remedy at law, have jurisdiction to grant injunctive
relief or temporary restraining order pending the out-come
of an enforcement proceeding pursuant to this
Article. The proceeding