803 KAR 2:060. Employers'
RELATES TO: KRS 338.051, 29 C.F.R. Part
STATUTORY AUTHORITY: KRS 338.051
NECESSITY, FUNCTION, AND CONFORMITY:
Pursuant to the authority granted the Kentucky Occupational Safety and Health
Standards Board by KRS 338.051 to adopt administrative regulations required by
federal law, this administrative regulation identifies the responsibility place
upon the employer to post notices furnished by the Occupational Safety and
Health Program, Department of Workplace Standards, verify abatement of cited
hazards to the department, and also to furnish certain information to employees
for their safety and protection. Necessary for effective enforcement of the
purposes and policies of the Occupational Safety and Health Act which is to
insure so far as is possible, safe and healthful working conditions of Kentucky
workers (KRS 338.011).
Section 1. Definitions. (1)
"Abatement" means action by an employer to comply with a cited
standard or regulation or to eliminate a recognized hazard identified by Division
of Occupational Safety and Health Compliance during an inspection.
(2) "Abatement date" means:
(a) For an uncontested citation item, the
1. The date in the citation for abatement
of the violation;
2. The date approved by Division of
Occupational Safety and Health Compliance or established in litigation as a
result of a petition for modification of the abatement date (PMA); or
3. The date established in a citation by
an informal settlement agreement.
(b) For a contested citation item for
which the Kentucky Occupational Safety and Health Review Commission (KOSHRC)
has issued a final order affirming the violation, the later of:
1. The date identified in the final order
for abatement; or
2. The date computed by adding the period
allowed in the citation for abatement to the final order date;
3. The date established by a formal
(3) "Affected employees" means
those employees who are exposed to the hazard(s) identified as violation(s) in
(4) "Final order date" means:
(a) For an uncontested citation item, the
15th working day after the employer's receipt of the citation;
(b) For a contested citation item:
1. The 30th day after the date on which a
decision or order of a commission hearing officer has been docketed with the
commission, unless a member of the commission has directed review; or
2. Where review has been directed, the
30th day after the date on which the commission issues its decision or order
disposing of all or pertinent part of a case; or
3. The date on which an appeals court
issues a decision affirming the violation in a case in which a final order of
KOSHRC has been stayed.
(5) "Movable equipment" means a
hand-held or nonhand-held machine or device, powered or unpowered, that is used
to do work and is moved within or between worksites.
(6) "Establishment" means a
single physical location where business is conducted or where services or
industrial operations are performed, (for example: A factory, mill, store,
hotel, restaurant, movie theater, farm, ranch, bank, sales office, warehouse,
or central administrative office.) Where distinctly separate activities are
performed at a single physical location (such as contract construction
activities from the same physical location as a lumber yard), each activity
shall be treated as a separate physical establishment, and a separate notice or
notices shall be posted in each such establishment, to the extent that such
notices have been furnished by the Division of Occupational Safety and Health
Compliance. Where employers are engaged in activities which are physically
dispersed, such as agriculture, construction, transportation, communications,
and electric, gas and sanitary services, the notice or notices required by this
section shall be posted at the location to which employees report each day.
Where employees do not usually work at, or report to, a single establishment,
such as traveling salesmen, technicians, engineers, etc., such notice or
notices shall be posted at the location from which the employees operate to
carry out their activities. In all cases, such notice or notices shall be
posted in accordance with the requirements of Section 2 of this administrative
Section 2. Purpose and Scope. (1) KRS Chapter
338 requires, in part, that every 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. Covered employers shall comply with the occupational safety and
health standards promulgated pursuant to KRS Chapter 338. Employees shall
comply with standards, rules, administrative regulations and orders issued
under KRS Chapter 338 which are applicable to their own actions and conduct.
(2) The Division of Occupational Safety
and Health Compliance is authorized to conduct inspections and issue citations
and proposed penalties for alleged violations.
Section 3. Posting of Notice,
Availability of Act, Administrative Regulations, and Applicable Standards. (1)
Each employer shall post and keep posted a notice or notices to be furnished by
the Division of Occupational Safety and Health Compliance, Labor Cabinet, informing
employees of the protections and obligations provided for in KRS Chapter 338,
and that for assistance and information, including health standards, employees
should contact the employer or the Division of Occupational Safety and Health
Compliance. Such notice or notices shall be posted by the employer in each
establishment in a conspicuous place or places where notices to employees are
customarily posted. Each employer shall take steps to ensure that such notices
are not altered, defaced or covered by other material that obscures the poster.
(2) Copies of KRS Chapter 338, all
administrative regulations filed pursuant thereto, and all applicable standards
will be available at the Department of Workplace Standards, Labor Cabinet. If
an employer has obtained copies of these materials, he shall make them available
upon request to any employee or his authorized representative for review in the
establishment where the employee is employed on the same day the request is
made or at the earliest time mutually convenient to the employee or his
authorized representative and the employer.
(3) Any employer failing to comply with
the provisions of this section shall be subject to citation and penalty in
accordance with the provisions of KRS 338.991.
Section 4. Abatement Verification. (1)
Purpose. Inspections by the Division of Occupational Safety and Health
Compliance are intended to result in the abatement of violations of KRS Chapter
338. This section sets forth the procedures the Division of Occupational Safety
and Health Compliance will use to ensure abatement. These procedures are
tailored to the nature of the violation and the employer's abatement actions.
(2) Scope and application. This section
applies to employers who receive a citation for a violation of KRS Chapter 338.
(3) Abatement certification.
(a) Within ten (10) calendar days after
the abatement date, the employer must certify to the Division of Occupational
Safety and Health Compliance (the agency) that each cited violation has been
abated, except as provided in paragraph (b) of this subsection.
(b) The employer is not required to
certify abatement if the compliance officer, during the on-site portion of the
1. Observes, within twenty-four (24)
hours after a violation is identified, that abatement has occurred; and
2. Notes in the citation that abatement
(c) The employer's certification that
abatement is complete must include, for each cited violation, in addition to
the information required by subsection (8) of this section, the date and method
of abatement and a statement that affected employees and their representatives
have been informed of the abatement. Note to this subsection: Appendix A
(incorporated by reference in Section 5 of this administrative regulation)
contains a sample abatement certification letter.
(4) Abatement documentation.
(a) The employer must submit to the
agency, along with the information on abatement certification required by
subsection (3)(c) of this section, documents demonstrating that abatement is
complete for each willful or repeat violation and for any serious violation for
which the agency indicates in the citation that such abatement documentation is
(b) Documents demonstrating that
abatement is complete may include, but are not limited to, evidence of the
purchase or repair of equipment, photographic or video evidence of abatement,
or other written records.
(5) Abatement plans.
(a) The agency may require an employer to
submit an abatement plan for each cited violation (except an other-than-serious
violation) when the time permitted for abatement is more than ninety (90) calendar
days. If an abatement plan is required, the citation must so indicate.
(b) The employer must submit an abatement
plan for each cited violation within twenty-five (25) calendar days from the
final order date when the citation indicates that such a plan is required. The
abatement plan must identify the violation and the steps to be taken to achieve
abatement, including a schedule for completing abatement and, where necessary,
how employees will be protected from exposure to the violative condition in the
interim until abatement is complete. Note to this subsection: Appendix B
(incorporated by reference in Section 5 of this administrative regulation)
contains a sample abatement plan form.
(6) Progress reports.
(a) An employer who is required to submit
an abatement plan may also be required to submit periodic progress reports for
each cited violation. The citation must indicate:
1. That periodic progress reports are
required and the citation items for which they are required;
2. The date on which an initial progress
report must be submitted, which may be no sooner than thirty (30) calendar days
after submission of an abatement plan;
3. Whether additional progress reports
are required; and
4. The date(s) on which additional
progress reports must be submitted.
(b) For each violation, the progress
report must identify, in a single sentence if possible, the action taken to
achieve abatement and the date the action was taken. Note to this subsection:
Appendix B (incorporated reference by Section 5 of this administrative
regulation) contains a sample progress report form.
(7) Employee notification.
(a) The employer must inform affected
employees and their representative(s) about abatement activities covered by
this section by posting a copy of each document submitted to the agency or a summary
of the document near the place where the violation occurred.
(b) Where such posting does not
effectively inform employees and their representatives about abatement activities
(for example, for employers who have mobile work operations), the employer
1. Post each document or a summary of the
document in a location where it will be readily observable by affected
employees and their representatives; or
2. Take other steps to communicate fully
to affected employees and their representatives about abatement activities.
(c) The employer must inform employees
and their representatives of their right to examine and copy all abatement
documents submitted to the agency.
1. An employee or an employee
representative must submit a request to examine and copy abatement documents
within three (3) working days of receiving notice that the documents have been
2. The employer must comply with an
employee's or employee representative's request to examine and copy abatement
documents within five (5) working days of receiving the request.
(d) The employer must ensure that notice
to employees and employee representatives is provided at the same time or
before the information is provided to the agency and that abatement documents
1. Not altered, defaced, or covered by
other material; and
2. Remain posted for three (3) working
days after submission to the agency.
(8) Transmitting abatement documents.
(a) The employer must include, in each
submission required by this section, the following information:
1. The employer's name and address;
2. The inspection number to which the
3. The citation and item numbers to which
the submission relates;
4. A statement that the information
submitted is accurate; and
5. The signature of the employer or the
employer's authorized representative.
(b) The date of postmark is the date of
submission for mailed documents. For documents transmitted by other means, the
date the agency receives the document is the date of submission.
(9) Movable equipment.
(a) For serious, repeat, and willful
violations involving movable equipment, the employer must attach a warning tag
or a copy of the citation to the operating controls or to the cited component
of equipment that is moved within the worksite or between worksites. Note to
this paragraph: Attaching a copy of the citation to the equipment is deemed by Division
of Occupational Safety and Health Compliance to meet the tagging requirement of
paragraph (a) of this subsection as well as the posting requirement of 803 KAR
(b) The employer must use a warning tag
that properly warns employees about the nature of the violation involving the
equipment and identifies the location of the citation issued. Note to this
paragraph: Nonmandatory Appendix C in the material incorporated by reference in
Section 5 of this administrative regulation contains a sample tag that employers
may use to meet this requirement.
(c) If the violation has not already been
abated, a warning tag or copy of the citation must be attached to the
1. For hand-held equipment, immediately
after the employer receives the citation; or
2. For nonhand-held equipment, prior to
moving the equipment within or between worksites.
(d) For the construction industry, a tag
that is designed and used in accordance with 29 C.F.R. 1926.20(b)(3)
(incorporated by 803 KAR 2:402) and 29 C.F.R. 1926.200(h) (incorporated by 803
KAR 2:406) is deemed to meet the requirements of this section when the
information required by paragraph (b) of this subsection is included on the
(e) The employer must assure that the tag
or copy of the citation attached to movable equipment is not altered, defaced,
or covered by other material.
(f) The employer must assure that the tag
or copy of the citation attached to movable equipment remains attached until:
1. The violation has been abated and all
abatement verification documents required by this administrative regulation
have been submitted to the agency;
2. The cited equipment has been
permanently removed from service or is no longer within the employer's control;
3. The commission issues a final order
vacating the citation.
Section 5. Incorporation by Reference.
(1) The appendices to 29 C.F.R. 1903.19, as published in the Federal Register,
Volume 62, pages 15324-15340, March 31, 1997 are incorporated by reference.
(2) This material may be inspected,
obtained, and copied at the Kentucky Labor Cabinet, U.S. 127 South, Frankfort,
Kentucky 40601. Office hours are 8 a.m. - 4:30 p.m. (ET), Monday through
Friday. (OSH 103; 1 Ky.R. 158; eff. 12-11-74; Am. 3 Ky.R. 249; eff. 10-6-76; 24
Ky.R. 1145; 1510; eff. 1-12-98; TAm eff. 8-9-2007; TAm eff. 9-8-2011; TAm eff.