902 KAR 100:165. Notices, reports, and instructions to employees.
RELATES TO: KRS 211.842 - 211.852,
211.990(4), 10 C.F.R. 19.11 to 19.17, 30.7, 30.10
STATUTORY AUTHORITY: KRS 13B.170,
194A.050, 211.090(3), 211.844
NECESSITY, FUNCTION, AND CONFORMITY: KRS
211.844 requires the Cabinet for Health and Family Services to provide by
administrative regulation for the registration and licensing of the possession
or use of sources of ionizing or electronic product radiation and the handling
and disposal of radioactive waste. This administrative regulation establishes
notices, instructions, and reports for the protection of workers who may be
exposed to radiation in their employment.
Section 1. Posting of Notices to Workers.
(1) A licensee or registrant shall post current copies of the following documents:
(a) This administrative regulation and
902 KAR 100:019, relating to standards for protection against radiation;
(b) The license, certificate of
registration, conditions or documents incorporated into the license by
reference, and amendments to the license;
(c) The operating procedures for work
under the license or registration; and
(d) A notice of violation involving
radiological working conditions, proposed imposition of civil penalty, or order
issued as authorized by 902 KAR 100:170, and responses from the licensee or
registrant.
(2) If posting of a document specified in
subsection (1)(a), (b), or (c) of this section is not practical, the licensee
or registrant shall post a notice that describes the document and states where
it may be examined.
(3) Cabinet form KR-441, Notice to
Employees, shall be prominently posted by a licensee or registrant.
(4) Documents, notices, or forms posted
as required by this section shall:
(a) Appear in a sufficient number of
places to permit an individual engaged in work under the license or
registration to observe them on the way to or from a particular work location
to which the document applies;
(b) Be conspicuous; and
(c) Be replaced if defaced or altered.
(5)(a) Cabinet documents posted as
required by subsection (1)(d) of this section shall be posted within two (2)
working days after receipt of the documents from the cabinet;
(b) The licensee's or registrant's
response shall be posted within two (2) working days after dispatch from the
licensee or registrant; and
(c) The documents shall remain posted for
a minimum of five (5) working days or until action correcting the violation has
been completed, whichever is later.
Section 2. Instructions to Workers. (1)
An individual likely to receive in a year,
during the course of employment, an
occupational dose in excess of 100 millirems (one (1) mSV) shall be:
(a) Kept informed of the storage,
transfer, or use of sources of radiation in the licensee's or registrant's workplace;
(b) Informed of health protection
problems, to the individual and potential offspring, associated with exposure
to radioactive material or radiation, and instructed in precautions or procedures
to minimize exposure and in the purposes and functions of protective devices
employed;
(c) Instructed in, and instructed to
observe, to the extent within the worker's control, the applicable requirements
of 902 KAR Chapter 100 and licenses issued thereunder for the protection of
personnel from exposures to radiation or radioactive material;
(d) Instructed of their responsibility to
report promptly to the licensee or registrant a condition that may lead to or
cause a violation of the Act, 902 KAR Chapter 100 or license conditions, or
unnecessary exposure to radiation or radioactive material;
(e) Instructed in the appropriate
response to warnings made in the event of an unusual occurrence or malfunction
that may involve exposure to radiation or radioactive material; and
(f) Informed of the radiation exposure
reports that workers may request as authorized by Section 3 of this
administrative regulation.
(2) In determining the individuals
subject to the requirements of this section, a licensee or registrant shall
take into consideration assigned activities during normal and abnormal
situations involving exposure to radioactive material or radiation that can
reasonably be expected to occur during the life of a licensed or registered
facility. The extent of the instructions shall be commensurate with potential
radiological health protection problems in the workplace.
Section 3. Notifications and Reports to
Individuals. (1) Radiation exposure data for an individual and the results of
measurements, analyses, and calculations of radioactive material deposited or retained
in the body of an individual, shall be reported to the individual.
(2) The information reported shall
include data and results obtained as required by 902 KAR Chapter 100, orders,
or license conditions as shown in records maintained by the licensee or registrant
as required by 902 KAR 100:019, Section 34.
(3) Each notification and report shall:
(a) Be in writing;
(b) Include the following identifying
data:
1. The name of the licensee or
registrant;
2. The name of the individual; and
3. The individual's identification or
Social Security number.
(c) Include the individual's exposure
information; and
(d) Contain the following statement:
"This report is furnished to you under the provisions of the Kentucky
Cabinet for Health and Family Services' radiation administrative regulations,
902 KAR 100:165. Preserve this report for further reference."
(4) A licensee or registrant shall advise
the worker annually of the worker's exposure to radiation or radioactive
material as shown in records maintained by the licensee or registrant required
by 902 KAR 100:019, Section 34.
(5) At the request of a worker formerly
engaged in work controlled by the licensee
or the registrant, a licensee or registrant
shall furnish to the worker a report of the worker's exposure to radiation or radioactive
material. The report shall:
(a) Be furnished within thirty (30) days
from the time request is made, or within thirty (30) days after the exposure of
the individual has been determined by the licensee or registrant, whichever is
later;
(b) Cover the period of time the worker's
activities involved exposure to radiation from radioactive materials licensed
by, or radiation machines registered with, the cabinet; and
(c) Include the dates and locations of
work under the license or registration in which the worker participated during
this period.
(6) If a licensee or registrant is
required, pursuant to 902 KAR 100:019, Sections 40, 41, and 42, to report to
the cabinet an exposure of an individual to radiation or radioactive material,
the licensee or the registrant shall also provide the individual a report on
the exposure data included in the report to the cabinet. The reports shall be
transmitted to the individual at a time not later than the transmittal to the
cabinet.
(7)(a) At the request of a worker who is
terminating employment in work involving exposure to radiation or radioactive
material during the current year, the licensee or registrant shall provide to
the worker, or to the worker's designee, at termination a written report regarding
the radiation dose received by that worker from operations of the licensee or
registrant during the current year or fraction thereof.
(b) If the most recent individual
personnel monitoring results are not available at the time of termination, a
written estimate of the dose shall be provided.
(c) Estimated doses shall be clearly
indicated as estimated doses.
Section 4. Presence of Representatives of
Licensees or Registrants and Workers during Inspection. (1) A licensee or registrant
shall afford to the cabinet at all reasonable times opportunity to inspect
materials, machines, activities, facilities, premises, and records required by
902 KAR Chapter 100.
(2) During an inspection, cabinet
inspectors may consult privately with workers as specified in Section 5 of this
administrative regulation. The licensee or registrant may accompany cabinet
inspectors during other phases of an inspection.
(3) If, during the inspection, an
individual has been authorized by the workers to represent them during cabinet
inspections, the licensee or registrant shall notify the inspectors of the
authorization and shall give the workers' representative an opportunity to accompany
the inspectors during the inspection of physical working conditions.
(4) The workers' representative shall be
routinely engaged in work under control of the licensee or registrant and shall
have received instructions as specified in Section 2 of this administrative
regulation.
(5) Different representatives of
licensees or registrants and workers may accompany the inspectors during
different phases of an inspection if there is no resulting interference with
the conduct of an inspection. However, only one (1) workers' representative at
a time may accompany the inspectors.
(6) With the approval of the licensee or
registrant and the workers' representative, an individual who is not routinely
engaged in work under control of the licensee or registrant, for example, a consultant
to the licensee or registrant or to the workers'
representative, shall be afforded the
opportunity to accompany cabinet inspectors during
the inspection of physical working conditions.
(7) A cabinet inspector shall refuse to
permit accompaniment by an individual who deliberately interferes with a fair
and orderly inspection.
(8) Unless specifically authorized, an
individual accompanying an inspector shall not have access to an area
containing information classified by an agency of the U.S. government as a
national security interest.
(9) Unless previously authorized by the
licensee or registrant, a worker's representative shall not have access to an
area containing proprietary information.
Section 5. Consultation with Workers
during Inspection. (1) If necessary to conduct an effective and thorough
inspection, a cabinet inspector may consult privately with a worker concerning
a matter of occupational radiation protection or other matter related to 902
KAR Chapter 100, licenses, or registrations.
(2) During the course of an inspection, a
worker may bring to the attention of the inspectors, either orally or in
writing, a past or present condition that he has reason to believe may have
contributed to or caused a violation of the Act, 902 KAR Chapter 100, or
license condition, or an unnecessary exposure of an individual to radiation
from licensed radioactive material or a registered radiation machine under the
licensee's or registrant's control. A written notice shall comply with the
requirements of Section 6(1) of this administrative regulation.
(3) The requirements of subsection (2) of
this section shall not be interpreted as authorization to disregard
instructions required by Section 2 of this administrative regulation.
Section 6. Requests by Workers for
Inspections. (1)(a) A worker or representative of workers who believes that a
violation of the Act, 902 KAR Chapter 100, or a license condition exists or has
occurred in work under a license or registration with regard to radiological
working conditions in which the worker is engaged, may request an inspection by
giving notice of the alleged violation to the Cabinet for Health and Family
Services, Radiation Health Branch.
(b) The notice shall:
1. Be in writing;
2. Set forth the specific grounds for the
notice; and
3. Be signed by the worker or
representative of the workers.
(c) A copy shall be provided to the
licensee or registrant by the cabinet no later than at the time of inspection.
If the worker giving the notice requests, his name and the name of individuals
referred to in the notice shall not appear in the copy or on a record published,
released, or made available by the cabinet, except for good cause shown.
(2) In accordance with 49 C.F.R. 19.16, if,
upon receipt of the notice, the Manager, Radiation Health Branch, determines
that the complaint meets the requirements established in subsection (1) of this
section, and that there are reasonable grounds to believe that the alleged
violation exists or has occurred, the manager of the Radiation and Health
Branch shall cause an inspection to be made as soon as practicable, to
determine if the alleged violation exists or has occurred. An inspection
authorized by this section may not be limited to matters referred to in the complaint.
(3) A licensee, registrant, contractor,
or subcontractor of a licensee or registrant, shall not discharge or
discriminate against a worker because the worker has:
(a) Filed a complaint;
(b) Instituted or caused to be instituted
a proceeding under 902 KAR 100:170;
(c) Testified or is about to testify in a
proceeding; or
(d) Exercised an option on behalf of
himself or others afforded by this administrative regulation.
Section 7. Inspections not Warranted;
Informal Review. (1)(a) If the Cabinet for Health and Family Services,
Radiation Health Branch determines, with respect to a complaint under Section 6
of this administrative regulation, that an inspection is not warranted because
there are no reasonable grounds to believe that a violation exists or has
occurred, the cabinet shall notify the complainant in writing of the
determination.
(b) The complainant may obtain a review
of the determination by submitting a written statement of position with the
Commissioner, Department for Public Health. The commissioner shall provide the
licensee or registrant with a copy of the statement by certified mail
excluding, at the request of the complainant, the name of the complainant.
(c) The licensee or registrant may submit
an opposing written statement of position with the commissioner, who shall
provide the complainant with a copy of the statement by certified mail.
(2) Upon the request of the complainant,
the commissioner shall hold an administrative hearing in accordance with 902
KAR 1:400.
(3) If the Radiation Health Branch determines
that an inspection is not warranted because the requirements of Section 6(1) of
this administrative regulation have not been met, the complainant shall be
notified, in writing, of the determination. The determination shall be without
prejudice to the filing of a new complaint meeting the requirements of Section
6(1) of this administrative regulation.
Section 8. Employee Protection. (1)
Discrimination by a cabinet licensee, an applicant for a cabinet license, a
registrant or a contractor or subcontractor of a cabinet licensee, registrant
or applicant against an employee for engaging in protected activities shall be
prohibited. Discrimination includes discharge and other actions that relate to
compensation, terms, conditions, or privileges of employment.
(a) The protected activities include in
part:
1. Providing the cabinet or his or her
employer information about alleged violations or possible violations of
requirements of 902 KAR Chapter 100;
2. Refusing to engage in a practice made
unlawful under these requirements, if the employee has identified the alleged
illegality to the employer;
3. Requesting the cabinet to institute
action against his or her employer for enforcement of these requirements;
4. Testifying in a cabinet proceeding, before
Congress, or at a federal or state proceeding regarding a provision, or
proposed provision, of 902 KAR Chapter 100; and
5. Assisting or participating in, or is
about to assist or participate in, a protected activity.
(b) A protected activity shall retain its
protected status even if no formal proceeding is initiated as a result of the
employee assistance or participation.
(c) This section shall not be applied to
an employee alleging discrimination who, acting without direction from his or
her employer or the employer's agent, deliberately causes a violation of the
Act or the administrative regulations promulgated under the Act.
(2) An employee who believes that he or
she has been discharged or discriminated against for engaging in a protected
activity may seek a remedy through an administrative proceeding in the Department
of Labor.
(a) The aggrieved employee shall file a
complaint within 180 days after the occurrence of the alleged violation with
the Kentucky Department of Labor, Employment Standards Administration, Wage and
Hour Division.
(b) If warranted by the evidence
presented, the Kentucky Department of Labor may order reinstatement, back pay,
and compensatory damages as appropriate to the case.
(3) A violation of subsections (1) or (5)
of this section or Section 1(3) of this administrative regulation by a cabinet
licensee, an applicant for a cabinet license, or a contractor or subcontractor
of a cabinet licensee or applicant shall constitute grounds for:
(a) Denial, revocation, or suspension of
the license;
(b) Imposition of a penalty; or
(c) Other enforcement action.
(4)(a) An action taken by an employer or
others that adversely affects an employee shall be predicated upon
nondiscriminatory grounds.
(b) The prohibition applies if the
adverse action occurs because the employee has engaged in a protected activity.
(c) An employee's engagement in a
protected activity does not automatically render him or her immune from
discharge or discipline for legitimate reasons, or from adverse action dictated
by nonprohibited considerations.
(5) An agreement affecting the compensation,
terms, conditions, or privileges of employment, including an agreement to
settle a complaint filed by an employee with the Department of Labor, shall not
contain a provision that has the potential to prohibit, restrict, or discourage
an employee from participating in protected activity, including providing
information to the cabinet or to his or her employer on alleged violations or
other matters within cabinet's regulatory responsibilities.
Section 9. Deliberate Misconduct. (1)
This section applies to:
(a) Licensee;
(b) Registrant;
(c) Certificate of registration holder;
(d) Applicant for a license, or
certificate of registration;
(e) Employee of any person identified in
this section; or
(f) Contractor, including a supplier, consultant,
or subcontractor to any person identified in this section.
(2) Any person identified in subsection 1
of this section shall not:
(a) Engage in deliberate misconduct that
causes or may have caused, if not detected, a licensee, registrant, certificate
of registration holder, or applicant to be in violation of a rule,
administrative regulation, order; term, condition, or
limitation of a license issued by the cabinet;
or
(b) Deliberately submit to the cabinet, a
licensee, registrant, certificate of registration holder, an applicant, or a
licensee's, certificate holder's, or applicant's contractor or subcontractor,
information that the person submitting the information knows to be incomplete
or inaccurate in some respect material to the cabinet.
(3) A person who violates subsection (2) of
this section shall be subject to enforcement action in accordance with the procedures
in 902 KAR 100:170.
(4) For the purposes of subsection (2)(a)
of this section, deliberate misconduct by a person means an intentional act or
omission that the person knows:
(a) May cause a licensee, registrant,
certificate holder, or applicant for a license, registration, or certificate to
be in violation of the rule, regulation, order or a term, condition, or
limitation of a license, registration, or certificate issued by the cabinet; or
(b) Constitutes a violation or a
requirement, procedure, instruction, contract, purchase order, or policy of a
licensee, registrant, certificate holder, applicant, or the contractor or
subcontractor of any of them.
Section 10. Incorporation by Reference.
(1) Form KR-441, "Notice to Employees", edition 2/2011 is
incorporated by reference.
(2) This material may be inspected,
copied, or obtained, subject to copyright law, at the Office of the
Commissioner of Public Health, 275 East Main Street, Frankfort, Kentucky 40621,
Monday through Friday, 8 a.m. until 4:30 p.m. (1
Ky.R. 420; eff. 2-5-75; Am. 3 Ky.R. 170; eff. 9-1-76; 12 Ky.R. 1073; eff.
1-3-86; 18 Ky.R. 1578; eff. 1-10-92; 24 Ky.R. 771; eff. 11-14-97; 26 Ky.R.
2418; 27 Ky.R. 991; eff. 10-16-2000; 37 Ky.R. 1863; 2651; eff. 6-3-11.)
