TITLE 41. LABOR AND EMPLOYMENT
CHAPTER 15. Occupational Health and Safety
Article 1. General Provisions
SECTION 41-15-10. Repealed by 2010 Act No. 137, § 8, eff March 31, 2010.
SECTION 41-15-50. Repealed by 2010 Act No. 137, § 8, eff March 31, 2010.
SECTION 41-15-80. Employers shall furnish safe place; compliance of employers and employees to certain rules.
(1) Each employer shall furnish to his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees, and he shall comply with occupational safety and health rules and regulations promulgated under this chapter.
(2) Each employee shall comply with occupational safety and health rules, regulations and orders issued pursuant to this chapter which are applicable to his own actions and conduct.
HISTORY: 1962 Code § 40-257.1; 1974 (58) 2328.
SECTION 41-15-90. Employers shall inform employees of protections and obligations; exceptions.
The Director of the Department of Labor, Licensing and Regulation or his designee shall issue rules and regulations requiring that employers keep their employees informed of their protections and obligations under this chapter, including the provisions of applicable safety and health regulations, through the posting of notices or other appropriate means. The provisions of Section 41-15-80 and this section shall not apply to employers subject to the provisions of the Federal Railway Safety Act of 1970.
HISTORY: 1962 Code § 40-257.2; 1974 (58) 2328; 1993 Act No. 181 § 977, eff February 1, 1994.
SECTION 41-15-100. Exposure of employees to potentially harmful materials.
The Director of the Department of Labor, Licensing and Regulation or his designee shall issue regulations requiring employers to monitor and measure an employee's exposure to potentially toxic materials or harmful physical agents and to maintain accurate records of such employee exposure. Such regulations shall provide employees or their representatives with an opportunity to observe such monitoring or measuring and to have access to the records thereof. Such regulations shall also make appropriate provision for each employee or former employee to have access to such records as will indicate his own exposure to toxic materials or harmful physical agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic material or harmful physical agents in concentrations or at levels which exceed those prescribed by an applicable occupational safety and health standard promulgated under Sections 41-15-210 to 41-15-330, as amended, and shall inform any employee who is being thus exposed of the corrective action being taken.
Where appropriate, such regulations shall also prescribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at his cost, to employees exposed to such hazards in order to most effectively determine whether the health of such employees is adversely affected by such exposure. The results of the medical examinations or other tests shall be made available to the employer, the Director, and at the request of the employee, to his physician.
In the event such medical examinations or other tests are in the nature of research, such examinations may be furnished at the expense of the Division of Labor. The results of such examinations or tests shall be furnished only to the Director of the Department of Labor, Licensing and Regulation or his designee and, at the request of the employee, to his physician.
HISTORY: 1962 Code § 40-258; 1973 (58) 355; 1993 Act No. 181 § 977, eff February 1, 1994.
Article 3. Rules and Regulations of Director of the Department of Labor, Licensing and Regulation
SECTION 41-15-210. Director may promulgate, modify, or revoke rules and regulations.
The Director of the Department of Labor, Licensing and Regulation or his designee may promulgate, modify or revoke rules and regulations which will have full force and effect of law upon being properly certified and filed for the purpose of attaining the highest degree of health and safety protection for any and all employees working within the State of South Carolina, whether employed in the public or private sector.
HISTORY: 1962 Code § 40-261; 1971 (57) 505; 1993 Act No. 181, § 977, eff February 1, 1994.
SECTION 41-15-220. Notice and hearing; occupational safety and health standards not subject to Administrative Procedure Act; rebuttable presumptions created by publication of notice.
(A) Before the promulgation, modification, or revocation of a regulation issued pursuant to this article, the Director shall conduct a public hearing at which all interested persons, including employer and employee representatives, must be provided an opportunity to appear and present their comments orally or written, or both. Notice of the hearing must be published in the State Register and in at least three newspapers, at least one of which has circulation in upper, lower, and middle South Carolina, once a week for three weeks. The notice must contain the date, time, and place of the hearing and a brief description of the proposed regulation.
(B) Occupational safety and health standards promulgated pursuant to this article are not subject to the Administrative Procedures Act. After promulgation the department shall file a notice in the Legislative Council to be published in the State Register. This notice must refer to the federal occupational safety and health administration standards which have been repromulgated under this section and give specific notice of differences between the state and federal standard. Filing and publication of notice in the State Register give notice of the contents of the standard to a person subject to or affected by it.
(C) Publication of the notice creates a rebuttable presumption that the:
(1) standard to which it refers was promulgated under this section;
(2) notice was filed and made available for public inspection at the day and hour stated in it;
(3) copy on file in the Legislative Council is a true copy of the original.
HISTORY: 1962 Code § 40-262; 1971 (57) 505; 1973 (58) 358; 1992 Act No. 377, § 1, eff May 15, 1992.
SECTION 41-15-230. Effective dates.
Any rule or regulation promulgated, modified or revoked under this article may contain a provision delaying its effective date for such period (not in excess of ninety days) as the Director determines may be necessary to insure that affected employers and employees will be informed of the existence, modification or revocation of the rule or regulation and of its terms and that employers affected are given an opportunity to familiarize themselves and their employees with the existence of the requirements of the rule or regulation.
HISTORY: 1962 Code § 40-263; 1971 (57) 505.
SECTION 41-15-240. Temporary permits for variances.
Any affected employer may apply to the Director of the Department of Labor, Licensing and Regulation or his designee for a temporary permit granting a variance from a rule or regulation or any provision thereof promulgated under this article. Affected employees shall be given notice by the employer of each such application and shall be furnished an opportunity to participate in any hearing which shall be directed at the request of the employer or by the Director on his own motion. Such temporary permit shall be granted at the discretion of the Director if sufficient evidence establishes that:
(a) He is unable to comply with a rule or regulation by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the rule or regulation or because necessary construction or alteration of facilities cannot be completed by the effective date;
(b) He is taking all available steps to safeguard his employees against the hazard covered by the rule or regulation;
(c) He has an effective program for coming into compliance with the rule or regulation as quickly as practicable. Any temporary permit issued under this section shall prescribe the practices, means, methods, operations and processes which the employer must adopt and use while the permit is in effect and state in detail his program for coming into compliance with the rule or regulation.
No temporary permit may be in effect for longer than the period needed by the employer to achieve compliance with the rule or regulation or for one year, whichever is shorter, except that such an order may be renewed not more than twice (1) so long as the requirements of this paragraph are met and (2) if an application for a renewal is filed at least ninety days prior to the expiration date of the order. The form of the application itself for a temporary permit shall be as prescribed by the Director.
HISTORY: 1962 Code § 40-264; 1971 (57) 505; 1973 (58) 373; 1993 Act No. 181, § 977, eff February 1, 1994.
SECTION 41-15-250. Permits for permanent variances.
Any affected employer may apply to the Director for a permit for a permanent variance from a rule or regulation promulgated under this article. Affected employees and their bargaining representative, if any, shall be given notice by the employer of each such application and shall be furnished an opportunity to participate in a hearing. The Director shall issue such permit if he determines on the record, after opportunity for an inspection where applicable and a hearing, that the proponent of a variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations 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 rule and regulation. The permit 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 rule or regulation in question. Such a permit may be revoked or modified upon application by an employer, employee or by the Director on his own motion, in the manner prescribed for its issuance under this section at any time after six months from its issuance.
HISTORY: 1962 Code § 40-265; 1971 (57) 505; 1973 (58) 373.
SECTION 41-15-260. Interrogation; inspection; warrant for inspection; issuance; return; records of warrants issued.
(A) The Director, his inspectors, compliance officers, agents or designees, upon proper presentation of credentials to the owner, manager or agent of the employer, shall enter at reasonable times and have the right to question either publicly or privately any such employer, owner, manager, agent or the employees of the employer and inspect, investigate, reproduce, photograph and sample all pertinent places, sites, areas, work injury records and such other records during regular working hours and at other reasonable times, and within reasonable limits, and in a reasonable manner when such comes under the jurisdiction of the Director to enforce the occupational safety and health provisions of this title.
(B) If an inspector is denied admission for purposes of inspection, the Director may seek a warrant as follows:
(1) Any circuit judge having jurisdiction where the inspection and investigation is to be conducted is empowered to issue administrative warrants upon proper showing of the need for such entry. Such inspection and investigation may include interviewing of employees, photographing, reproducing, sampling, and such other tests and acts as are necessary to carry out the purposes of the inspection and investigation.
(2) A warrant shall be issued only upon an affidavit of an officer or employee of the Division of Labor duly designated and having knowledge of the facts alleged, sworn to before the circuit judge establishing the grounds for issuing the warrant and certifying that request for permission to conduct the inspection has been made to the employer concerned and was refused and that the Director of the Department of Labor, Licensing and Regulation or his designee has authorized the application for issuance of the warrant. If the circuit judge is satisfied that grounds for the application exist, he shall issue a warrant identifying the area, premises, building or conveyance to be inspected, the purpose of such inspection, and, where appropriate, the type of property to be inspected. The warrant shall be directed to a person authorized by the Director of the Department of Labor, Licensing and Regulation or his designee to execute it. The warrant shall state the grounds for issuance with the supporting affidavit being made a part thereof. It shall command the person to whom it is directed to inspect the area, premises, building, or conveyance identified for the purpose specified. The warrant shall direct that it be served at a reasonable time. It shall designate the circuit judge to whom it shall be returned.
(3) A warrant issued pursuant to this section shall be served within ten days and returned within thirty days of its date of issue. The circuit judge who has issued a warrant under this section shall attach to the warrant a copy of the return and all papers filed in connection therewith and shall cause them to be filed with the court which issued such warrant.
(4) Any circuit judge authorized to issue warrants pursuant to this section shall keep a record along with a copy of the return warrant and supporting affidavit and documents for a period of three years from date of issuance of each warrant. The record shall be on a form prescribed by the Director of the Department of Labor, Licensing and Regulation or his designee and reflect as to each warrant:
(a) Date and exact time of issue;
(b) Name of person to whom warrant issued;
(c) Name of person whose establishment or site is to be inspected;
(d) Reason for issuance of warrant;
(e) Date and time of return.
HISTORY: 1962 Code § 40-266; 1971 (57) 505; 1973 (58) 358; 1979 Act No. 175 § 1; 1993 Act No. 181, § 977, eff February 1, 1994.
SECTION 41-15-270. Subpoenas and taking testimony.
The Director of the Department of Labor, Licensing and Regulation or his designee may subpoena witnesses, documents, take and preserve testimony, examine witnesses, administer oaths and, upon proper presentation of credentials to the owner, manager or agent of the employer, enter any place, site or area where employment comes under the jurisdiction of the Director and interrogate any person employed therein or connected therewith or the proper officers of a corporation or employer, or he may file a written or printed list of interrogatories and require full and complete answers to them to be returned under oath within fifteen days of the receipt of such list.
HISTORY: 1962 Code § 40-267; 1971 (57) 505; 1974 (58) 2328; 1993 Act No. 181, § 977, eff February 1, 1994.
SECTION 41-15-280. Citation for violation; notice in lieu of citation.
If, upon inspection or investigation, the Director or his authorized representative ascertains that an employer has violated a requirement of any rule or regulation promulgated pursuant to 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 or violations, including a reference to any statute or rule or regulation alleged to have been violated. The citation shall fix a reasonable 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 minimis violations which have no direct or immediate relationship to safety or health. Such notice shall have the effect of a recommendation to the employer; compliance will not be required.
Each 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 each place a violation referred to in the citation occurred.
No citation may be issued under this section after the expiration of six months following the occurrence of any violation.
HISTORY: 1962 Code § 40-268; 1971 (57) 505; 1973 (58) 371.
SECTION 41-15-290. Correction of dangerous conditions or practices; injunctions; mandamus.
(a) The court of common pleas of the county where the place of employment is located shall have jurisdiction, upon petition of the Director of the Department of Labor, Licensing and Regulation or his designee, to restrain any conditions 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 eliminated through the enforcement procedures provided by law. 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 presence of any individual in locations or under conditions where such imminent danger exists, except individuals whose presence is necessary to avoid, correct, or remove such imminent danger or to maintain the capacity of a continuous process operation to resume 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 court of common pleas shall have jurisdiction to grant such injunctive relief or temporary restraining order pending the outcome of an enforcement proceeding pursuant to the law.
(c) Whenever and as soon as a safety specialist concludes that conditions or practices described in item (a) exist in any place of employment, he shall inform the affected employees and employers of the danger and that he is recommending to the Director that relief be sought.
(d) If the Director of the Department of Labor, Licensing and Regulation or his designee, or his authorized representative, arbitrarily or capriciously fails to seek relief under this section, any employee who may be injured or aggrieved by reason of such failure, or the representative of such employees, may bring an action against the Director in the court of common pleas for the district in which the imminent danger is alleged to exist, or the employer has its principal office, or an affected employee resides, for a writ of mandamus to compel the Director to seek such an order and for such further relief as may be appropriate.
HISTORY: 1962 Code § 40-269; 1971 (57) 505; 1973 (58) 370; 1993 Act No. 181, § 977, eff February 1, 1994.
SECTION 41-15-300. Notice of penalties.
If, after an inspection or investigation, the Director issues a citation, he shall within a reasonable time after the termination of such inspection or investigation notify the employer by certified mail of the penalty, if any, assessed under Section 41-15-320.
HISTORY: 1962 Code § 40-270; 1971 (57) 505.
SECTION 41-15-310. Appeal of Division of Labor decisions to administrative law judge.
(A) Within thirty days after receipt of a citation, notice of penalty, or notice of abatement issued by the Division of Labor pursuant to the authority of this chapter, any aggrieved party may request a contested case hearing before the Administrative Law Court in accordance with Articles 3 and 5 of Chapter 23, Title 1 and the Rules of the Administrative Law Court. The parties to the contested case are the Division of Labor and any aggrieved employer, employee, or employee representative who requests a contested case hearing.
(B) Hearings must be conducted according to the Rules of the Administrative Law Court.
(C) A party aggrieved by the decision of the Administrative Law Court may appeal the decision as provided in Sections 1-23-380 and 1-23-610.
(D) An individual, partnership, corporation, or other business entity is not required to be represented by an attorney when appearing in a contested case before the Administrative Law Court pursuant to this section, but may appear by an officer or an employee.
(E) All matters pending before the South Carolina Occupational Health and Safety Review Board on the effective date of this act must be transferred to the Administrative Law Court for adjudication, and the South Carolina Occupational Health and Safety Review Board shall no longer provide administrative review.
HISTORY: 1962 Code § 40-271; 1971 (57) 507; 1973 (58) 375; 1974 (58) 2328; 1983 Act No. 113, § 2; 1993 Act No. 181, § 977, eff February 1, 1994; 2008 Act No. 188, § 2, eff January 1, 2009.
SECTION 41-15-320. Penalties.
(a) Any employer who wilfully or repeatedly violates any occupational safety or health rule or regulation promulgated pursuant to this article may be assessed a civil penalty of not more than seventy thousand dollars for each violation.
(b) Any employer who has received a citation for a serious violation of an occupational safety or health rule or regulation promulgated pursuant to this article may be assessed a civil penalty of up to seven thousand dollars for each such violation.
(c) Any employer who has received a citation for a violation of an occupational safety or health rule or regulation or order promulgated pursuant to this article, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to seven thousand dollars for each such violation.
(d) Any employer who fails to correct a violation for which a citation has been issued under Section 41-15-280 within the period permitted for its correction (which period shall not begin to run until the date of the final order of the Director in the case of any review proceeding initiated by the employer in good faith and not solely for delay or avoidance of penalties), may be assessed a civil penalty of not more than seven thousand dollars for each day during which such failure or violation continues.
(e) Any employer who willfully violates any occupational safety or health rule or regulation promulgated pursuant to this article and that violation causes death to any employee shall be deemed guilty of a misdemeanor and, upon conviction, be punished by a fine of not more than ten thousand dollars or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be by a fine of not more than twenty thousand dollars or by imprisonment for not more than one year, or by both.
(f) Any employer who violates any of the posting requirements, as prescribed under the provisions of this article, may be assessed a civil penalty of up to seven thousand dollars for each violation.
(g) Any person who gives advance notice of any inspection to be conducted under this article, without authority from the Director of the Department of Labor, Licensing and Regulation or his designee, shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than six months, or both.
(h) Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this article shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than ten thousand dollars or by imprisonment for not more than six months, or both.
(i) For the purposes of this section, an occupational safety or health rule or regulation shall be deemed to be a rule or regulation promulgated by the Director of the Department of Labor, Licensing and Regulation or his designee pursuant to Section 41-15-210 which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, necessary or appropriate to provide safe or healthful employment and places of employment.
(j) For the purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
(k) Except for items (e), (g) and (h) which establishes a misdemeanor over which the courts of general sessions have jurisdiction, all penalty assessments shall be made by the Director.
(l) Any amounts collected under this section shall be turned over to the State Treasurer for deposit in the General Fund of the State.
HISTORY: 1962 Code § 40-273; 1971 (57) 505; 1973 (58) 376; 1980 Act No. 443, §§ 1, 2; 1991 Act No. 25, §§ 1-5, eff April 24, 1991; 1993 Act No. 181, § 977, eff February 1, 1994.
SECTION 41-15-330. Action when penalty is not paid within thirty days.
In each case where the penalty is not paid within thirty days, the Attorney General shall bring an action against the assessed employer. Any amounts collected shall be turned over to the State Treasurer for deposit in the General Fund of the State.
HISTORY: 1962 Code § 40-274; 1971 (57) 505.
Article 5. Rights and Remedies of Aggrieved Employees
SECTION 41-15-510. Employees shall not be discriminated against for filing complaints and instituting proceedings.
No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted, or caused to be instituted, any proceeding under or relating to statutes, rules or regulations regarding occupational safety and health, or testified, or is about to testify, in any such proceedings or because of the exercise by such employee on behalf of himself or others of any right afforded by such statutes, rules or regulations.
HISTORY: 1962 Code § 40-453.2; 1973 (58) 379.
SECTION 41-15-520. Remedies of an employee charging discrimination.
A private sector employee believing that he has been discharged or otherwise discriminated against by any person in violation of Section 41-15-510 may, within thirty days after the violation occurs, file a complaint with the Director of the Department of Labor, Licensing and Regulation alleging the discrimination. Upon receipt of the complaint, the director shall within fifteen days forward the complaints that allege violations of Section 41-15-510 and violations of a federal statute other than 29 U.S.C.A. Section 660(c) to the United States Department of Labor Whistleblower Program. For other complaints, the director shall cause an investigation to be made as he deems appropriate. If upon such investigation the director determines the provisions of Section 41-15-510 have been violated, he shall institute an action in the appropriate court of common pleas against such person. In any such action the court of common pleas shall have jurisdiction for cause shown to restrain violations of Section 41-15-510 and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay. A public sector employee believing that he has been discharged or otherwise discriminated against by any person in violation of Section 41-15-510 may proceed with a civil action pursuant to the provisions contained in Chapter 27, Title 8.
HISTORY: 1962 Code § 40-453.3; 1973 (58) 379; 1993 Act No. 181, § 977, eff February 1, 1994; 2011 Act No. 50, § 1, eff June 14, 2011; 2012 Act No. 282, § 1, eff June 29, 2012.
Article 6. South Carolina Occupational Health and Safety Review Board [Repealed]
SECTION 41-15-600. §§ 41-15-600 to 41-15-640. Repealed by 2008 Act No. 188, § 3, eff January 1, 2009. |
Staff Portal
