40.1-49.4 - Enforcement of this title and standards, rules or regulations for safety and health; orders of Commissioner; proceedings in circuit court; injunctions; penalties.
§ 40.1-49.4. Enforcement of this title and standards, rules or regulationsfor safety and health; orders of Commissioner; proceedings in circuit court;injunctions; penalties.
A. 1. If the Commissioner has reasonable cause to believe that an employerhas violated any safety or health provision of Title 40.1 or any standard,rule or regulation adopted pursuant thereto, he shall with reasonablepromptness issue a citation to the employer. Each citation shall be inwriting and shall describe with particularity the nature of the violation orviolations, including a reference to the provision of this title or theappropriate standards, rules or regulations adopted pursuant thereto, andshall include an order of abatement fixing a reasonable time for abatement ofeach violation.
2. The Commissioner may prescribe procedures for calling to the employer'sattention de minimis violations which have no direct or immediaterelationship to safety and health.
3. No citation may be issued under this section after the expiration of sixmonths following the occurrence of any alleged violation.
4. (a) The Commissioner shall have the authority to propose civil penaltiesfor cited violations in accordance with subsections G, H, I, and J of thissection. In determining the amount of any proposed penalty he shall give dueconsideration to the appropriateness of the penalty with respect to the sizeof the business of the employer being charged, the gravity of the violation,the good faith of the employer, and the history of previous violations. Inaddition, the Commissioner shall have authority to assess interest on allpast-due penalties and administrative costs incurred in the collection ofpenalties for such violations consistent with § 2.2-4805.
(b) After, or concurrent with, the issuance of a citation and order ofabatement, and within a reasonable time after the termination of aninspection or investigation, the Commissioner shall notify the employer bycertified mail or by personal service of the proposed penalty or that nopenalty is being proposed. The proposed penalty shall be deemed to be thefinal order of the Commissioner and not subject to review by any court oragency unless, within 15 working days from the date of receipt of suchnotice, the employer notifies the Commissioner in writing that he intends tocontest the citation, order of abatement or the proposed penalty or theemployee or representative of employees has filed a notice in accordance withsubsection B of this section and any such notice of proposed penalty,citation or order of abatement shall so state.
B. Any employee or representative of employees of an employer to whom acitation and order of abatement has been issued may, within 15 working daysfrom the time of the receipt of the citation and order of abatement by theemployer, notify the Commissioner, in writing, that they wish to contest theabatement time before the circuit court.
C. If the Commissioner has reasonable cause to believe that an employer hasfailed to abate a violation for which a citation has been issued within thetime period permitted for its abatement, which time shall not begin to rununtil the entry of a final order in the case of any contest as provided insubsection E of this section initiated by the employer in good faith and notsolely for delay or avoidance of penalties, a citation for failure to abatewill be issued to the employer in the same manner as prescribed by subsectionA of this section. In addition, the Commissioner shall notify the employer bycertified mail or by personal service of such failure and of the penaltyproposed to be assessed by reason of such failure. If, within 15 working daysfrom the date of receipt of the notice of the proposed penalty, the employerfails to notify the Commissioner that he intends to contest the citation orproposed assessment of penalty, the citation and assessment as proposed shallbe deemed a final order of the Commissioner and not subject to review by anycourt or agency.
D. Civil penalties owed under this section shall be paid to the Commissionerfor deposit into the general fund of the Treasurer of the Commonwealth. TheCommissioner shall prescribe procedures for the payment of proposedassessments of penalties which are not contested by employers. Suchprocedures shall include provisions for an employer to consent to abatementof the alleged violation and pay a proposed penalty or a negotiated sum inlieu of such penalty without admission of any civil liability arising fromsuch alleged violation.
Final orders of the Commissioner or the circuit courts may be recorded,enforced and satisfied as orders or decrees of a circuit court uponcertification of such orders by the Commissioner or the court as appropriate.
E. Upon receipt of a notice of contest of a citation, proposed penalty, orderof abatement or abatement time pursuant to subdivision A 4 (b), subsection Bor C of this section, the Commissioner shall immediately notify the attorneyfor the Commonwealth for the jurisdiction wherein the violation is alleged tohave occurred and shall file a civil action with the circuit court. Uponissuance and service of process, the circuit court shall promptly set thematter for hearing without a jury. The circuit court shall thereafter issue awritten order, based on findings of fact and conclusions of law, affirming,modifying or vacating the Commissioner's citation or proposed penalty, ordirecting other appropriate relief, and such order shall become final 21 daysafter its issuance. The circuit court shall provide affected employees ortheir representatives and employers an opportunity to participate as partiesto hearings under this subsection.
F. 1. In addition to the remedies set forth above, the Commissioner may filea civil action with the clerk of the circuit court having equity jurisdictionover the employer or the place of employment involved asking the court totemporarily or permanently enjoin any conditions or practices in any place ofemployment which are such that a danger exists which could reasonably beexpected to cause death or serious physical harm immediately or before theimminence of such danger can be eliminated through the enforcement proceduresotherwise provided by this title. Any order issued under this section mayrequire such steps to be taken as may be necessary to avoid, correct orremove such imminent danger and prohibit the employment or presence of anyindividual in locations or under conditions where such imminent dangerexists, except individuals whose presence is necessary to avoid, correct orremove such imminent danger or to maintain the capacity of a continuousprocess operation to resume normal operations without a complete cessation ofoperations, or where a cessation of operations is necessary, to permit suchto be accomplished in a safe and orderly manner. No order issued withoutprior notice to the employer shall be effective for more than five workingdays. Whenever and as soon as the Commissioner concludes that conditions orpractices described in this subsection exist in any place of employment andthat judicial relief shall be sought, he shall immediately inform theaffected employer and employees of such proposed course of action.
2. Any court described in this section shall also have jurisdiction, uponpetition of the Commissioner or his authorized representative, to enjoin anyviolations of this title or the standards, rules or regulations promulgatedthereunder.
3. If the Commissioner arbitrarily or capriciously fails to seek relief undersubdivision 1 of this subsection, any employee who may be injured by reasonof such failure, or the representative of such employee, may bring an actionagainst the Commissioner in a circuit court of competent jurisdiction for awrit of mandamus to compel the Commissioner to seek such an order and forsuch further relief as may be appropriate.
G. Any employer who has received a citation for a violation of any safety orhealth provision of this title or any standard, rule or regulationpromulgated pursuant thereto and such violation is specifically determinednot to be of a serious nature may be assessed a civil penalty of up to $7,000for each such violation.
H. Any employer who has received a citation for a violation of any safety orhealth provision of this title or any standard, rule or regulationpromulgated pursuant thereto and such violation is determined to be a seriousviolation shall be assessed a civil penalty of up to $7,000 for each suchviolation.
I. Any employer who fails to abate a violation for which a citation has beenissued within the period permitted for its abatement (which period shall notbegin to run until the entry of the final order of the circuit court) may beassessed a civil penalty of not more than $7,000 for each day during whichsuch violation continues.
J. Any employer who willfully or repeatedly violates any safety or healthprovision of this title or any standard, rule or regulation promulgatedpursuant thereto may be assessed a civil penalty of not more than $70,000 foreach such violation.
K. Any employer who willfully violates any safety or health provisions ofthis title or standards, rules or regulations adopted pursuant thereto, andthat violation causes death to any employee, shall, upon conviction, bepunished by a fine of not more than $70,000 or by imprisonment for not morethan six months, or by both such fine and imprisonment. If the conviction isfor a violation committed after a first conviction of such person, punishmentshall be a fine of not more than $140,000 or by imprisonment for not morethan one year, or by both such fine and imprisonment.
L. In any proceeding before a judge of a circuit court parties may obtaindiscovery by the methods provided for in the Rules of Supreme Court ofVirginia.
M. No fees or costs shall be charged the Commonwealth by a court or anyofficer for or in connection with the filing of the complaint, pleadings, orother papers in any action authorized by this section or § 40.1-49.5.
N. Every official act of the circuit court shall be entered of record and allhearings and records shall be open to the public, except any informationsubject to protection under the provisions of § 40.1-51.4:1.
O. The provisions of Chapter 30 (§ 59.1-406 et seq.) of Title 59.1 shall beconsidered safety and health standards of the Commonwealth and enforced as toemployers pursuant to this section by the Commissioner of Labor and Industry.
(1979, c. 354; 1982, c. 412; 1989, c. 341; 1991, c. 153; 1992, c. 777; 2005,c. 681.)