HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 628

49th legislature - STATE OF NEW MEXICO - first session, 2009

AN ACT

RELATING TO OCCUPATIONAL HEALTH AND SAFETY; CLARIFYING RIGHT OF ENTRY AND INSPECTION; CLARIFYING PRIVATE QUESTIONING.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 50-9-10 NMSA 1978 (being Laws 1972, Chapter 63, Section 9, as amended) is amended to read:

     "50-9-10. RIGHT OF ENTRY AND INSPECTION--COMPLAINTS--CONSULTATION--NOTIFICATION.--

          A. In order to carry out the purposes of the Occupational Health and Safety Act, the department's authorized representatives, upon presenting appropriate credentials to the owner, operator or agent in charge, are authorized to and may:

                (1) enter and inspect and investigate at reasonable times and without delay any place of employment [at reasonable times and without delay] and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein; and

                (2) question privately the employer and employees [and to inspect and investigate] during regular working hours and at other reasonable times and within reasonable limits and in a reasonable manner [the place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein. The department's representative is not authorized to question privately the employer or employees until the board has adopted regulations protecting the rights of such employer and employees]. Legal counsel for the employer or employee being questioned may be present during private questioning, provided that the same legal counsel does not represent both the employer and employee. For purposes of this section, "employer" includes persons employed as a manager, supervisor or foreman and persons acting as an agent of the employer directly or indirectly in the interest of the employer in relation to an employee. An employee being privately questioned may elect to have a representative of the employee's recognized or certified bargaining unit present during the employee's private questioning.

          B. Any employee or representative of employees may file a written complaint with the department concerning any alleged violation of a regulation or any hazardous condition. A copy of the complaint shall be provided to the employer at the time of the inspection. However, upon the request of the complainant, the complainant's name shall not appear on the copy. The department shall investigate the complaint and notify the complainant and employer in writing of the results of the investigation and any action to be taken. If no action is contemplated, the department shall notify the complainant and include in the notice the reasons therefor. The department shall provide for the informal review of decisions not to take compliance action at the request of the complainant. The review shall not be by those who investigated the complaint.

          C. In order to aid inspections, a representative of the employer and a representative authorized by employees shall be given an opportunity to accompany the department inspector during the physical inspection of the work place. If there is no authorized employee representative, the department inspector shall consult with a reasonable number of employees.

          D. Prior to or during any inspection of a work place, any employees or representative of employees employed in [such] the work place may notify the department or the department inspector in writing of any violation of the Occupational Health and Safety Act [which] that they have reason to believe exists in [such] the work place. The department shall establish procedures for informal review of the decision made by the inspector, and, if no citation is issued with respect to the alleged violation, it shall furnish the employee requesting [such] the review a written statement of the reasons for the department's final disposition of the case.

          E. If an inspection reveals that employees are exposed to toxic materials or harmful physical agents at levels in excess of those prescribed by regulations of the board, the department shall provide the employees with access to the results of the inspection. The employer shall promptly notify the employees who are being exposed to the agents or materials in excess of the applicable regulations and inform them of the corrective action being taken or that review has been requested in accordance with Section 50-9-17 NMSA 1978.

          F. It is unlawful for any person to give advance notice of any inspection to be conducted under the Occupational Health and Safety Act without the written approval of the secretary or the secretary's authorized representative.

          G. The board shall adopt regulations to implement this section."

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