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Senate Engrossed |
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State of Arizona Senate Fifty-second Legislature Second Regular Session 2016
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CHAPTER 356
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SENATE BILL 1500 |
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AN ACT
amending sections 23‑101, 23‑108, 23‑108.01, 23‑108.03, 23-401 and 23‑407, arizona revised statues; amending section 23‑407, arizona revised statutes, as amended by this act; amending section 23‑408, arizona revised statutes; Repealing section 23‑432, Arizona Revised Statutes; amending sections 23‑474 and 23‑475, Arizona Revised Statutes; amending title 23, chapter 2, article 11, Arizona Revised Statutes, by adding section 23‑486; providing for transferring and renumbering; amending section 41‑191.10, Arizona Revised Statutes, as transferred and renumbered; repealing sections 41‑3016.01, 41‑3016.02, 41‑3016.03 and 41‑3016.05, Arizona Revised Statutes; amending title 41, chapter 27, article 2, Arizona Revised Statutes, by adding sections 41‑3024.16, 41‑3024.17, 41‑3024.18 and 41‑3024.19; relating to the industrial commission of arizona.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 23-101, Arizona Revised Statutes, is amended to read:
23-101. Industrial commission; members; qualifications; appointment; terms; compensation; removal
A. There shall be an industrial commission of Arizona.
B. The commission shall be composed of five members
appointed by the governor pursuant to section 38‑211. Each
member shall be appointed for a term of five years. The terms of the members serving on the commission on the
effective date of this section shall terminate January 8, 1969. Of
the members of the commission first appointed, one shall serve for a term
ending January 8, 1970, and one each for terms ending one, two, three, and four
years thereafter. Thereafter one term shall Members' terms expire on the
third Monday in January of each the appropriate year. Not
more than three members of the commission shall belong to the same political
party. The chairman of the commission shall be appointed by and
serve at the pleasure of the governor. The members of the commission shall
have been residents of the state for at least five years immediately preceding their original
appointment.
C. Each commissioner shall receive a salary of fifty
dollars per day for each day in which he performs
his duties as a commissioner the commissioner prepares for or attends a
commission meeting. To receive the salary provided in this subsection, each
commissioner shall provide documentation to the director of the commission that
explains what commission duties were completed for the day in which the
commissioner is seeking a salary.
D. The governor may remove a member of the commission for inefficiency, neglect of duty, malfeasance, misfeasance or nonfeasance in office.
Sec. 2. Section 23-108, Arizona Revised Statutes, is amended to read:
23-108. Director; employees; compensation and expenses
A. The commission shall employ a director who is subject to confirmation by the senate appointed by the governor pursuant
to section 38‑211 and who serves at the pleasure of the governor. Subject
to title 41, chapter 4, article 4, the director may employ such personnel as deemed necessary by the
provisions of this chapter and
chapters 1, 2 and 6 and article 2 of chapter 3 of
this title.
B. The compensation of the director shall be as
determined pursuant to section 38‑611. The director shall have
such administrative ability, education and training as the commission
determines. The director shall serve at the
pleasure of the governor.
C. The compensation of the director and commission employees and payment of subsistence and travel expenses allowed by law shall be paid from the administrative fund.
Sec. 3. Section 23-108.01, Arizona Revised Statutes, is amended to read:
23-108.01. Powers and duties of director
A. The
director of the commission,
under the supervision of the commission, shall administer the policies, powers
and duties of the commission as prescribed by this chapter and chapters 1, 2 and 6 and article 2 of
chapter 3 of this title.
B. The director of the commission may deny the salary of a commissioner if the commissioner does not provide documentation that explains what commission duties were completed for the day in which the commissioner is seeking a salary or if the commission duties were not related to preparing for or attending a commission meeting.
Sec. 4. Section 23-108.03, Arizona Revised Statutes, is amended to read:
23-108.03. Performance of certain powers and duties
A. The industrial commission shall be responsible for determining the policy of the commission.
B. Any powers and duties prescribed by law to the
commission in this chapter
and chapters 1, 2 and 6 and article 2 of chapter 3 of this title, whether
ministerial or discretionary, may by resolution be delegated by the commission
to the director or any of its department heads or assistants, provided, that
the commission shall not delegate its power or duty to:
1. Make rules and regulations.
2. Commute awards to a lump sum.
3. License self‑insurers.
C. The commission shall be responsible for the official acts of its employees acting in the name of the commission and by its delegated authority.
Sec. 5. Section 23-401, Arizona Revised Statutes, is amended to read:
23-401. Definitions
In this article, unless the context otherwise requires:
1. "Board" means a review board established pursuant to section 23‑422.
2. "Commission" means the industrial commission of Arizona.
3. "De minimis violation" means a condition or practice which, although undesirable, has no direct or immediate relationship to safety or health.
4. "Director" means the director of the division.
5. "Division" means the division of occupational safety and health within the commission.
6. "Employee" means any person performing services for an employer, including any person defined as an employee pursuant to section 23‑901, except employees engaged in household domestic labor.
7. "Employer" means any individual or type of organization, including the state and all its political subdivisions, which has in its employ one or more individuals performing services for it in employment and includes self‑employed persons, but does not include employers of household domestic labor.
8. "Interested party" means the commission and its agents, the employer and the affected employees of such employer.
9. "Non‑serious violation" means a condition or practice in a place of employment which does not constitute a serious violation but which violates a standard or regulation and has a direct or immediate relationship to safety or health, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of such condition or practice.
10. "Recognized hazard" means an unsafe or unhealthful condition or practice recognized as such with respect to the standard of knowledge in the industry.
11. "Regulation" means any written regulation of occupational safety and health governing places of employment formulated pursuant to section 23‑410, exclusive of standards, and shall have the same meaning as and include the term "rule".
12. "Serious violation" means a condition or practice in a place of employment which violates a standard, regulation or section 23‑403, subsection A and produces a substantial probability that death or serious physical harm could result, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of such condition or practice.
13. "Standard" means any occupational safety and health standard which has been adopted and promulgated by a nationally recognized standards‑producing organization or the federal government and shall have the same meaning as, and include the term "code".
14. "Trade secret" means a plan or process, tool, mechanism, or compound not patented, known only to its owner and those of his employees to whom it is necessary to confide it, or other information that the employer treats as confidential and has a reasonable basis for doing so.
15. "Workplace" means a location or site wherein work, either temporary or permanent, is being conducted in connection with an industry, trade or business.
Sec. 6. Section 23-407, Arizona Revised Statutes, is amended to read:
23-407. Duties and powers of the division
The division on behalf of the commission shall:
1. Recommend all standards, rules or changes
thereto, pursuant to section 23‑410, to the commission for its the
commission's approval or disapproval.
2. Have the authority to enforce all such standards
or rules, after their adoption by the
commission, pursuant to the procedures and requirements of this article.
3. Implement an occupational safety and health
program, which shall include, but not be limited to,
that includes the
following duties and responsibilities:
(a) Development of a statewide occupational safety and health education and training program to acquaint employers, supervisors, employees and employee representatives with the most modern and effective techniques of accident prevention and occupational health control.
(b) Development of training programs for employees of the division, and where necessary develop certification programs for recognition of competent, trained personnel.
(c) Planning, organizing, conducting or attending occupational safety and health seminars, conferences and meetings designed for management, supervisory personnel, employees and employer representatives and establishing liaison with other safety and health groups as may be necessary.
(d) Definition and establishment of necessary research projects.
(e) Arrangement and procurement of necessary contractual services and training aids.
(f) Development of specific occupational safety and health programs for employer and employee representative groups.
4. Develop and maintain an effective program of
collection, compilation and analysis of occupational safety and health
statistics. The division shall compile statistics on work injuries and
illnesses which that shall include all disabling, serious or
significant injuries and illnesses whether or not involving loss of time from
work, other than minor injuries requiring only first aid treatment and which that
do not involve medical treatment, loss of consciousness, restriction of
work or motion or transfer to another job.
5. Coordinate the responsibilities and functions of other state agencies and political subdivisions of the state with regard to occupational safety and health in order to develop a comprehensive statewide program.
6. Contract with the office of administrative hearings to conduct hearings and adjudicate contested cases on an employer filing a notice of contest of a citation pursuant to this article. the decisions of the office of administrative hearings shall be subject to appeal to the review board established pursuant to this article.
Sec. 7. Section 23-407, Arizona Revised Statutes, as amended by section 6 of this act, is amended to read:
23-407. Duties and powers of the division
The division on behalf of the commission shall:
1. Recommend all standards, rules or changes thereto, pursuant to section 23‑410, to the commission for the commission's approval or disapproval.
2. Have the authority to enforce all such standards or rules, after adoption by the commission, pursuant to the procedures and requirements of this article.
3. Implement an occupational safety and health program that includes the following duties and responsibilities:
(a) Development of a statewide occupational safety and health education and training program to acquaint employers, supervisors, employees and employee representatives with the most modern and effective techniques of accident prevention and occupational health control.
(b) Development of training programs for employees of the division, and where necessary develop certification programs for recognition of competent, trained personnel.
(c) Planning, organizing, conducting or attending occupational safety and health seminars, conferences and meetings designed for management, supervisory personnel, employees and employer representatives and establishing liaison with other safety and health groups as may be necessary.
(d) Definition and establishment of necessary research projects.
(e) Arrangement and procurement of necessary contractual services and training aids.
(f) Development of specific occupational safety and health programs for employer and employee representative groups.
4. Develop and maintain an effective program of collection, compilation and analysis of occupational safety and health statistics. The division shall compile statistics on work injuries and illnesses that shall include all disabling, serious or significant injuries and illnesses whether or not involving loss of time from work, other than minor injuries requiring only first aid treatment and that do not involve medical treatment, loss of consciousness, restriction of work or motion or transfer to another job.
5. Coordinate the responsibilities and functions of other state agencies and political subdivisions of the state with regard to occupational safety and health in order to develop a comprehensive statewide program.
6. Contract with the
office of administrative hearings to conduct hearings and adjudicate contested
cases on an employer filing a notice of contest of a citation pursuant to this
article. The decisions of the
office of administrative hearings shall be subject to appeal to the review
board established pursuant to this article.
Sec. 8. Section 23-408, Arizona Revised Statutes, is amended to read:
23-408. Inspection of places and practices of employment; closing conference; prohibitions; employee initiation of investigation; violation; classification; injunction
A. The director of the division of occupational
safety and health, or his the director's authorized
representative, upon on presentation of
credentials, shall be permitted to inspect places of employment, question
employees and investigate conditions, practices or matters in connection with
employment subject to this article at reasonable times, as he the
director or the director's authorized representative may deem
appropriate to determine whether any person has violated any provision of this
article or any rule or regulation issued thereunder
pursuant to this article or
that may aid in the enforcement of the provisions of this article. No An
employer or other person shall not refuse to admit the director or his the
director's authorized representatives to any such
place or refuse to permit any such the inspection if the proper
credentials are presented and the inspection is made at a reasonable time.
B. The director or his
the director's authorized
representative shall inspect at least every six months any operation that mixes
rock, sand, gravel or similar materials with water and cement or with asphalt
and that is not included in the definition of mine in section 27‑301. The
director or his the director's authorized representative shall
monitor and work with the mine inspector only to the extent necessary to ensure
the this state's compliance with federal occupational safety and
health act standards, (P.L. 91‑596).
C. Notice of an intended inspection shall not be
given to an employer prior to before the time of actual
entry upon on the workplace, except by specific
authorization by the director.
D. A representative of the employer and a
representative authorized by his the employer's employees
shall be given an opportunity to accompany the director or his the
director's authorized representative during the physical inspection of
any workplace for the purpose of aiding such
the inspection. Where
there is no authorized employee representative, the director or his the
director's authorized representative shall consult a reasonable number
of employees concerning matters of safety and health in the workplace.
E. Except as provided in section 23‑426, information and facts developed by the commission, the director or any employee of the commission or division in the course of any inspection or investigation are public records subject to inspection pursuant to title 39, chapter 1, article 2, if, pursuant to section 23‑415, subsection D, the inspection or investigation has been closed or a citation has been issued. Such information and facts shall not be admissible in any court or before any administrative body except pursuant to this article. Notwithstanding this subsection, the director or any commission employee is not required to appear at any deposition, trial or hearing concerning a division inspection or investigation unless the appearance is related to a hearing held pursuant to this article. Hearings held pursuant to this article are open to the public.
F. During the inspection or investigation and in deciding whether to recommend and issue a citation, the director or the director's authorized representative and the commission may consider whether an employee has committed misconduct by violating the employer's policies, if any, regarding substance abuse while working, as evidenced by the results of testing for substance abuse or other evidence of impairment while working.
G. An employee of the division or the commission may not:
1. Before, during or after an inspection or investigation, communicate to an employer that the employer should not be represented by an attorney or that the employer may be treated more favorably by the division or the commission if the employer is not represented by an attorney.
2. Conduct an audio recording of an oral statement provided during an interview without the knowledge and consent of the person being interviewed. The Employee of the division or the commission shall inform the person being interviewed of the person's right to receive a copy of the recorded oral statement within a reasonable time.
3. Obtain a written statement during an interview without informing the person of the person's RIGHT TO receive a copy of the written statement within a reasonable time.
F. H. An employee or
a representative of employees who believes that a violation of a safety or health
standard or regulation exists that threatens physical harm or that an imminent
danger exists may request an investigation by giving notice to the director or his the
director's authorized representative of such
the violation or
danger. Any such notice shall
be reduced to in writing, shall
set forth with reasonable particularity the grounds for the notice and shall be signed by the employees or representative
of the employees. Upon on the request of the
employee giving such the notice, his the
employee's name and the names of other employees referred to therein in the notice shall not appear on any copy of such the
notice or any record published, released or made
available. If upon on receipt of such notification the notice the director determines that there
are reasonable grounds to believe that such
the violation or
danger exists, he the director shall make an investigation
in accordance with the provisions of this article as soon as practicable to
determine if such the violation or danger
exists. If the director determines there are no reasonable grounds
to believe that a violation or danger exists, he
the director shall
notify the employees or representative of the employees in writing of such a the determination.
G. I. Any person who
violates any provision of this section is guilty of a class 2 misdemeanor.
H. J. The commission,
or its the commission's authorized representative, in
addition to initiating an action under subsection F
H of this section, may file in the superior court in the county
where the inspection was refused a verified complaint against an employer who
violates subsection A of this section and request an injunction against
continued refusal to permit an inspection.
Sec. 9. Repeal
Section 23‑432, Arizona Revised Statutes, is repealed.
Sec. 10. Section 23-474, Arizona Revised Statutes, is amended to read:
23-474. Duties of commission
The commission shall:
1. Administer the provisions of this article through the division of occupational safety and health.
2. Establish a boiler advisory board to assist the commission in drafting standards and regulations.
3. 2. Promulgate Adopt standards and regulations pursuant to section 23‑475 and promulgate such adopt other rules and regulations as are necessary.
4. 3. Exercise such other powers as are necessary to carry out the duties and requirements of this article.
Sec. 11. Section 23-475, Arizona Revised Statutes, is amended to read:
23-475. Duties of division
The division shall:
1. Except Certify special inspectors as provided in section 23‑485. ,
2. Inspect boilers and lined hot water storage heaters under this article, except that beginning on July 1, 2017 the division may not inspect boilers and lined hot water storage heaters.
3. Establish a schedule to require regular boiler and lined hot water storage heater inspections.
2. 4. Recommend standards, regulations and amendments to such the standards and regulations to the commission for approval or disapproval.
3. 5. Enforce, under section 23‑478, all standards and regulations adopted by the commission.
Sec. 12. Title 23, chapter 2, article 11, Arizona Revised Statutes, is amended by adding section 23-486, to read:
23-486. Boiler advisory board; members; terms; meetings
A. The boiler advisory board is established to assist the commission in drafting standards and regulations for boilers and lined hot water storage heaters. The Boiler advisory board consists of the following members who are appointed by the commission:
1. One member who represents the boiler or lined hot water storage heater manufacturer industry.
2. One member who represents a public utility.
3. One member who represents the insurance industry.
4. One member who is an owner or operator of a boiler or lined hot water storage heater.
5. One member who is a licensed contractor.
B. The initial members of the boiler advisory board shall assign themselves by lot to terms of one or two years in office. All subsequent members serve three‑year terms of office. The chairperson shall notify the commission of these appointments.
C. the boiler advisory board shall annually elect a chairperson from its members.
D. The boiler advisory board shall meet at least annually and on the call of the commission. the commission shall determine the time and place of boiler advisory board meetings.
Sec. 13. Section 23‑521, Arizona Revised Statutes, is transferred and renumbered for placement in title 41, chapter 1, article 5, Arizona Revised Statutes, as section 41-191.10 and, as so renumbered, is amended to read:
41-191.10. Misrepresentations by employment agents; definition
A. Every employment agent shall reasonably ensure that any representations, whether spoken, written or advertised in printed form, that the employment agent makes with regard to any employment, work or situation and that lead or may lead persons to seek that employment, work or situation, are true and cover all the material facts affecting the employment in question. Failure to comply with this section is an unlawful practice pursuant to section 44-1522.
C. B. Nothing in This section shall be construed to does not include a recognized labor union.
A. C. for the purposes of this section, "employment
agent":
1. Means
all persons, firms, corporations or associations which that
for a fee, commission or charge that is collected from persons seeking
employment either:
1. furnish to
persons seeking employment information enabling or tending to enable the
persons to secure employment, including vocational guidance or employment
counseling services, .
2. furnish to
employers seeking laborers or other help of any kind information enabling or
tending to enable the employers to secure help. or
3. keep a
register of persons seeking employment or help, whether the agents conduct
their operations at a fixed place of business, on the streets or as transients
and also whether the operations constitute the principal business of the agents
or only a sideline or an incident to another business.
B. 2. "Employment agent" Does not mean:
1. (a) An employer who procures help for himself only.
2. (b) An employee of such an employer who procures help for him and does not act in a similar capacity for any other employer.
3. (c) A person, firm, corporation or association that does not charge or collect a fee or commission from a person seeking employment or for assisting that person to obtain employment.
4. (d) A person, firm, corporation or association that satisfies all of the following:
(a) (i) Is engaged in the business of providing electronic media services.
(b) (ii) Provides classified listings or performs employment research, or both, for employers and persons seeking employment.
(c) (iii) Does not charge or collect a fee or commission for the successful placement of a person seeking employment.
Sec. 14. Repeal
Sections 41-3016.01, 41-3016.02, 41-3016.03 and 41-3016.05, Arizona Revised Statutes, are repealed.
Sec. 15. Title 41, chapter 27, article 2, Arizona Revised Statutes, is amended by adding sections 41-3024.16, 41-3024.17, 41-3024.18 and 41-3024.19, to read:
41-3024.16. Industrial commission of Arizona; termination July 1, 2024
A. The industrial commission of Arizona terminates on July 1, 2024.
B. Title 23, chapter 1 is repealed on January 1, 2025.
41-3024.17. Occupational safety and health advisory committee; termination July 1, 2024
A. The Occupational safety and health advisory committee terminates on July 1, 2024.
B. section 23‑409 is repealed on January 1, 2025.
41-3024.18. Boiler advisory board; termination July 1, 2024
A. The Boiler advisory board terminates on July 1, 2024.
B. Section 23-486 is repealed on January 1, 2025.
41-3024.19. Occupational safety and health review board; termination July 1, 2024
A. The occupational safety and health review board terminates on July 1, 2024.
B. Sections 23‑422 and 23‑423 are repealed on January 1, 2025.
Sec. 16. Purpose of the boiler advisory board
Pursuant to section 41‑2955, subsection B, Arizona Revised Statutes, the legislature continues the boiler advisory board to assist the division of occupational safety and health in drafting standards and rules for boilers and water heaters.
Sec. 17. Purpose of the industrial commission of Arizona
Pursuant to section 41‑2955, subsection B, Arizona Revised Statutes, the legislature continues the industrial commission of Arizona to promote the health, safety and welfare of employees.
Sec. 18. Purpose of the occupational safety and health advisory committee
Pursuant to section 41‑2955, subsection B, Arizona Revised Statutes, the legislature continues the occupational safety and health advisory committee to assist the industrial commission in drafting standards and rules.
Sec. 19. Purpose of the occupational safety and health review board
Pursuant to section 41‑2955, subsection B, Arizona Revised Statutes, the legislature continues the occupational safety and health review board to hear administrative appeals regarding industrial commission matters.
Sec. 20. Retroactivity
Sections 14 and 15 of this act are effective retroactively to July 1, 2016.
Sec. 21. Conditional enactment; notice
A. Section 23‑407, Arizona Revised Statutes, as amended by section 7 of this act, becomes effective only if on or before December 31, 2018 the federal occupational safety and health administration publishes in the federal register pursuant to 29 Code of Federal Regulations section 1902.23 a final decision rendered under 29 Code of Federal Regulations section 1902.22 and pursuant to 29 Code of Federal Regulations section 1953 to reject the changes to this state's occupational safety and health plan prescribed in section 23‑407, Arizona Revised Statutes, as amended by section 6 of this act, that results in the exclusion of the changes from this state's federally approved occupational safety and health plan.
B. The director of the industrial commission of Arizona shall notify in writing the director of the Arizona legislative council on or before January 15, 2019 either:
1. Of the date on which the condition in subsection A of this section was met.
2. That the condition was not met.
APPROVED BY THE GOVERNOR MAY 19, 2016.
FILED IN THE OFFICE OF THE SECRETARY OF STATE MAY 19, 2016.