CHAPTER 502. HAZARD COMMUNICATION ACT
HEALTH AND SAFETY CODE
TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES
SUBTITLE D. HAZARDOUS SUBSTANCES
CHAPTER 502. HAZARD COMMUNICATION ACT
Sec. 502.001. SHORT TITLE. This chapter may be cited as the
Hazard Communication Act.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.002. FINDINGS; PURPOSE. (a) The legislature finds
that:
(1) the health and safety of persons working in this state may
be improved by providing access to information regarding
hazardous chemicals to which those persons may be exposed during
normal employment activities, during emergency situations, or as
a result of proximity to the manufacture or use of those
chemicals; and
(2) many employers in this state have established suitable
information programs for their employees and that access to the
information is required of most employers under the federal
Occupational Safety and Health Administration's (OSHA) Hazard
Communication Standard.
(b) It is the intent and purpose of this chapter to assure that
employers provide information regarding hazardous chemicals in
the workplace to employees who may be exposed to those chemicals
in their workplace.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.0021. FEDERAL LAWS AND REGULATIONS. In this chapter, a
reference to a federal law or regulation means a reference to the
most current version of that law or regulation.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.003. DEFINITIONS. In this chapter:
(1) "Article" means a manufactured item:
(A) that is formed to a specific shape or design during
manufacture;
(B) that has end-use functions dependent in whole or in part on
its shape or design during end use; and
(C) that does not release, or otherwise result in exposure to, a
hazardous chemical under normal conditions of use.
(2) "Board" means the Texas Board of Health.
(3) "Chemical manufacturer" means an employer in Standard
Industrial Classification (SIC) Codes 20-39 with a workplace
where chemicals are produced for use or distribution.
(4) "Chemical name" means:
(A) the scientific designation of a chemical in accordance with
the nomenclature system developed by the International Union of
Pure and Applied Chemistry (IUPAC) or the Chemical Abstracts
Service (CAS) rules of nomenclature; or
(B) a name that clearly identifies the chemical for the purpose
of conducting a hazard evaluation.
(5) "Common name" means a designation of identification, such as
a code name, code number, trade name, brand name, or generic
name, used to identify a chemical other than by its chemical
name.
(6) "Department" means the Texas Department of Health.
(7) "Designated representative" means the individual or
organization to whom an employee gives written authorization to
exercise the employee's rights under this chapter, except that a
recognized or certified collective bargaining agent is a
designated representative regardless of written employee
authorization.
(8) "Director" means the director of the Texas Department of
Health.
(9) "Distributor" means a business in Standard Industrial
Classification Major Industry Group 516 or 517 that supplies
hazardous chemicals to an employer who must comply with this Act.
(10) "Employee" means a person who may be or may have been
exposed to hazardous chemicals in the person's workplace under
normal operating conditions or foreseeable emergencies, and
includes a person working for this state, a person working for a
political subdivision of this state, or a member of a volunteer
emergency service organization or, if the applicable OSHA
standard or MSHA standard is not in effect, a person working for
a private employer. Workers such as office workers or accountants
who encounter hazardous chemicals only in nonroutine, isolated
instances are not employees for purposes of this chapter.
(11) "Employer" means a person engaged in private business who
is regulated by the federal Occupational Safety and Health Act of
1970 (Pub. L. No. 91-596), the Federal Coal Mine Health and
Safety Act of 1969 (Pub. L. No. 91-173), or the Federal Mine
Safety and Health Amendments Act of 1977 (Pub. L. No. 95-164) on
the effective date of this Act, or the state or a political
subdivision of the state, including a state, county, or municipal
agency, a public school, a college or university, a river
authority or publicly owned utility, a volunteer emergency
service organization, and other similar employers. The term does
not include any person to whom the federal Occupational Safety
and Health Act of 1970 (Pub. L. No. 91-596), the Federal Coal
Mine Health and Safety Act of 1969 (Pub. L. No. 91-173), or the
Federal Mine Safety and Health Amendments Act of 1977 (Pub. L.
No. 95-164) is applicable if that employer is covered by the OSHA
standard or the other two federal laws.
(12) "Expose" or "exposure" means that an employee is subjected
to a hazardous chemical in the course of employment through any
route of entry, including inhalation, ingestion, skin contact, or
absorption. The term includes potential, possible, or accidental
exposure under normal conditions of use or in a reasonably
foreseeable emergency.
(13) "Hazardous chemical" or "chemical" means an element,
compound, or mixture of elements or compounds that is a physical
hazard or health hazard as defined by the OSHA standard in 29 CFR
Section 1910.1200(c), or a hazardous substance as defined by the
OSHA standard in 29 CFR Section 1910.1200(d)(3), or by OSHA's
written interpretations. A hazard determination may be made by
employers who choose not to rely on the evaluations made by their
suppliers if there are relevant qualitative or quantitative
differences. A hazard determination shall involve the best
professional judgment.
(14) "Health hazard" has the meaning given that term by the OSHA
standard (29 CFR 1910.1200(c)).
(15) "Identity" means a chemical or common name, or alphabetical
or numerical identification, that is indicated on the material
safety data sheet (MSDS) for the chemical. The identity used must
permit cross-references to be made among the workplace chemical
list, the label, and the MSDS.
(16) "Label" means any written, printed, or graphic material
displayed on or affixed to a container of hazardous chemicals.
(17) "Material Safety Data Sheet" ("MSDS") means a document
containing chemical hazard and safe handling information that is
prepared in accordance with the requirements of the OSHA standard
for that document.
(18) "MSHA standard" means the Hazard Communication Standard
issued by the Mining Safety and Health Administration.
(19) "OSHA standard" means the Hazard Communication Standard
issued by the Occupational Safety and Health Administration and
codified as 29 CFR Section 1910.1200.
(20) "Physical hazard" means a chemical for which there is
scientifically valid evidence that it is a combustible liquid, a
compressed gas, explosive, flammable, an organic peroxide, an
oxidizer, pyrophoric, unstable (reactive), or water-reactive in
terms defined in the OSHA standard.
(21) "Temporary workplace" means a stationary workplace that is
staffed less than 20 hours a week. A temporary workplace may be
considered to be a work area of the headquarters workplace from
which employees are routinely dispatched. Temporary workplaces
may include pumping stations, emergency response sites, and
similar workplaces.
(22) "Work area" means a room, a defined space, a utility
structure, or an emergency response site in a workplace where
hazardous chemicals are present, produced, or used and where
employees are present.
(23) "Workplace" means an establishment, job site, or project,
at one geographical location containing one or more work areas,
with or without buildings, that is staffed 20 or more hours a
week.
(24) "Workplace chemical list" means a list of hazardous
chemicals developed under Section 502.005(a).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.004. APPLICABILITY OF CHAPTER. (a) Except as provided
by Subsection (b), this chapter applies only to employers who are
not required to comply with the OSHA standard, the Federal Coal
Mine Health and Safety Act of 1969 (Pub. L. No. 91-173), or the
Federal Mine Safety and Health Amendments Act of 1977 (Pub. L.
No. 95-164).
(b) Chemical manufacturers, importers, and distributors shall
provide MSDSs as required by Section 502.006. Penalties provided
by Sections 502.014, 502.015, and 502.016 may be assessed against
chemical manufacturers, importers, and distributors for failure
to provide MSDSs.
(c) If an employer is covered by both this chapter and Chapter
125, Agriculture Code, the employer is required to comply only
with this chapter.
(d) This chapter, except Section 502.009, does not apply to a
hazardous chemical in a sealed and labeled package that is
received and subsequently sold or transferred in that package if:
(1) the seal and label remain intact while the chemical is in
the workplace; and
(2) the chemical does not remain in the workplace longer than
five working days.
(e) This chapter does not require labeling of the following
chemicals:
(1) any pesticide, as that term is defined in the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136
et seq.), when subject to the labeling requirements of that Act
and labeling regulations issued under that Act by the
Environmental Protection Agency;
(2) any food, food additive, color additive, drug, cosmetic, or
medical or veterinary device, including materials intended for
use as ingredients in those products such as flavors and
fragrances, as those terms are defined in the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Section 301 et seq.) and regulations
issued under that Act, when they are subject to the labeling
requirements under that Act by the Food and Drug Administration;
(3) any distilled spirits that are beverage alcohols, wine, or
malt beverages intended for nonindustrial use, as those terms are
defined in the Federal Alcohol Administration Act (27 U.S.C.
Section 201 et seq.) and regulations issued under that Act, when
subject to the labeling requirements of that Act and labeling
regulations issued under that Act by the Bureau of Alcohol,
Tobacco, and Firearms; and
(4) any consumer product or hazardous substance, as those terms
are defined in the Consumer Product Safety Act (15 U.S.C. Section
2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C.
Section 1261 et seq.), respectively, when subject to a consumer
product safety standard or labeling requirement of those Acts or
regulations issued under those Acts by the Consumer Product
Safety Commission.
(f) This chapter does not apply to:
(1) any hazardous waste, as that term is defined by the federal
Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et
seq.), when subject to regulations issued under that Act by the
Environmental Protection Agency;
(2) a chemical in a laboratory under the direct supervision or
guidance of a technically qualified individual if:
(A) labels on incoming containers of chemicals are not removed
or defaced;
(B) the employer complies with Sections 502.006 and 502.009 with
respect to laboratory employees; and
(C) the laboratory is not used primarily to produce hazardous
chemicals in bulk for commercial purposes;
(3) tobacco or tobacco products;
(4) wood or wood products;
(5) articles;
(6) food, drugs, cosmetics, or alcoholic beverages in a retail
food sale establishment that are packaged for sale to consumers;
(7) food, drugs, or cosmetics intended for personal consumption
by an employee while in the workplace;
(8) any consumer product or hazardous substance, as those terms
are defined in the Consumer Product Safety Act (15 U.S.C. Section
2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C.
Section 1261 et seq.), respectively, if the employer can
demonstrate it is used in the workplace in the same manner as
normal consumer use and if the use results in a duration and
frequency of exposure that is not greater than exposures
experienced by consumers;
(9) any drug, as that term is defined in the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Section 301 et seq.); and
(10) radioactive waste.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.005. WORKPLACE CHEMICAL LIST. (a) For the purpose of
worker right-to-know, an employer shall compile and maintain a
workplace chemical list that contains the following information
for each hazardous chemical normally present in the workplace or
temporary workplace in excess of 55 gallons or 500 pounds or in
excess of an amount that the board determines by rule for certain
highly toxic or dangerous hazardous chemicals:
(1) the identity used on the MSDS and container label; and
(2) the work area in which the hazardous chemical is normally
present.
(b) The employer shall update the workplace chemical list as
necessary but at least by December 31 of each year. Each
workplace chemical list shall be dated and signed by the person
responsible for compiling the information.
(c) The workplace chemical list may be prepared for the
workplace as a whole or for each work area or temporary workplace
and must be readily available to employees and their
representatives. All employees shall be made aware of the
workplace chemical list before working with or in a work area
containing hazardous chemicals.
(d) An employer shall maintain a workplace chemical list for at
least 30 years. The employer shall send complete records to the
director if the employer ceases to operate.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.006. MATERIAL SAFETY DATA SHEET. (a) A chemical
manufacturer or distributor shall provide appropriate material
safety data sheets to employers who acquire hazardous chemicals
in this state with each initial shipment and with the first
shipment after an MSDS is updated. The MSDSs must conform to the
most current requirements of the OSHA standard.
(b) An employer shall maintain a legible copy of a current MSDS
for each hazardous chemical purchased. If the employer does not
have a current MSDS for a hazardous chemical when the chemical is
received at the workplace, the employer shall request an MSDS in
writing from the manufacturer or distributor in a timely manner
or shall otherwise obtain a current MSDS. The manufacturer or
distributor shall respond with an appropriate MSDS in a timely
manner.
(c) Material safety data sheets shall be readily available, on
request, for review by employees or designated representatives at
each workplace.
(d) A copy of an MSDS maintained by an employer under this
section shall be provided to the director on request.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.007. LABEL. (a) A label on an existing container of a
hazardous chemical may not be removed or defaced unless it is
illegible, inaccurate, or does not conform to the OSHA standard
or other applicable labeling requirement. Primary containers must
be relabeled with at least the identity appearing on the MSDS,
the pertinent physical and health hazards, including the organs
that would be affected, and the manufacturer's name and address.
Except as provided by Subsection (b), secondary containers must
be relabeled with at least the identity appearing on the MSDS and
appropriate hazard warnings.
(b) An employee may not be required to work with a hazardous
chemical from an unlabeled container except for a portable
container intended for the immediate use of the employee who
performs the transfer.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.008. OUTREACH PROGRAM. (a) The director shall develop
an outreach program that:
(1) consists of an education and training program in the form of
instructional materials to assist employers in fulfilling the
requirements of Section 502.009; and
(2) includes the development and distribution of a supply of
informational leaflets concerning employer's duties, employee
rights, the outreach program, and the effects of hazardous
chemicals.
(b) The director may contract with a public institution of
higher education or other public or private organization to
develop and implement the outreach program.
(c) The director shall develop and provide to each employer a
suitable form of notice providing employees with information
relating to employee rights under this chapter.
(d) The director shall publicize the availability of information
to answer inquiries from employees, employers, or the public in
this state concerning the effects of hazardous chemicals.
(e) In cooperation with the director, an employer may provide an
outreach program in the community.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Renumbered from Health & Safety Code Sec. 502.009 and amended
by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993.
Sec. 502.009. EMPLOYEE EDUCATION PROGRAM. (a) An employer
shall provide an education and training program for employees who
use or handle hazardous chemicals.
(b) An employer shall develop, implement, and maintain at the
workplace a written hazard communication program for the
workplace that describes how the criteria specified in this
chapter will be met.
(c) An education and training program must include, as
appropriate:
(1) information on interpreting labels and MSDSs and the
relationship between those two methods of hazard communication;
(2) the location by work area, acute and chronic effects, and
safe handling of hazardous chemicals known to be present in the
employees' work area and to which the employees may be exposed;
(3) the proper use of protective equipment and first aid
treatment to be used with respect to the hazardous chemicals to
which the employees may be exposed; and
(4) general safety instructions on the handling, cleanup
procedures, and disposal of hazardous chemicals.
(d) Training may be conducted by categories of chemicals. An
employer must advise employees that information is available on
the specific hazards of individual chemicals through the MSDSs.
Protective equipment and first aid treatment may be by categories
of hazardous chemicals.
(e) An employer shall provide additional instruction to an
employee when the potential for exposure to hazardous chemicals
in the employee's work area increases significantly or when the
employer receives new and significant information concerning the
hazards of a chemical in the employee's work area. The addition
of new chemicals alone does not necessarily require additional
training.
(f) An employer shall provide training to a new or newly
assigned employee before the employee works with or in a work
area containing a hazardous chemical.
(g) An employer shall keep the written hazard communication
program and a record of each training session given to employees,
including the date, a roster of the employees who attended, the
subjects covered in the training session, and the names of the
instructors. Those records shall be maintained for at least five
years by the employer. The department shall have access to those
records and may interview employees during inspections.
(h) Emergency service organizations shall provide, to their
members or employees who may encounter hazardous chemicals during
an emergency, information on recognizing, evaluating, and
controlling exposure to the chemicals.
(i) As part of an outreach program created in accordance with
Section 502.008, the director shall develop an education and
training assistance program to assist employers who are unable to
develop the programs because of size or other practical
considerations. The program shall be made available to those
employers on request.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Renumbered from Health & Safety Code Sec. 502.010 and amended
by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993.
Sec. 502.010. LIABILITY UNDER OTHER LAW. Providing information
to an employee does not affect:
(1) the liability of an employer with regard to the health and
safety of an employee or other person exposed to hazardous
chemicals;
(2) the employer's responsibility to take any action to prevent
occupational disease as required under other law; or
(3) any other duty or responsibility of a manufacturer,
producer, or formulator to warn ultimate users of a hazardous
chemical under other law.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Renumbered from Health & Safety Code Sec. 502.011 and amended
by Acts 1993, 73rd Leg., ch. 528, eff. Sept. 1, 1993.
Sec. 502.011. COMPLAINTS AND INVESTIGATIONS. (a) The director
or the director's representative shall investigate in a timely
manner a complaint received in writing from an employee or an
employee's designated representative relating to an alleged
violation of this chapter by an employer.
(b) A complaint received from a person relating to an alleged
violation shall be referred to the federal Occupational Safety
and Health Administration (OSHA) or to the federal Mine Safety
and Health Administration (MSHA) if the complaint is related to
an applicable OSHA or MSHA requirement and the applicable OSHA or
MSHA standard is in effect. The director or the director's
representative shall investigate the complaint if:
(1) the applicable OSHA or MSHA standard is not in effect; or
(2) the complaint is based on a requirement of this chapter.
(c) On presentation of appropriate credentials, an officer or
representative of the director may enter a workplace at
reasonable times to inspect and investigate complaints.
(d) The department may find multiple violations by an employer
based on distinct requirements of this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Renumbered from Health & Safety Code Sec. 502.012 and amended
by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993.
Sec. 502.012. REPORTING FATALITIES AND INJURIES. (a) Within 48
hours after the occurrence of an employee accident that directly
or indirectly involves chemical exposure or that involves
asphyxiation, and that is fatal to one or more employees or
results in the hospitalization of five or more employees, the
employer of any of the employees so injured or killed shall
report the accident either orally or in writing to the
department.
(b) The report to the department shall relate the circumstances
of the accident, the number of fatalities, and the extent of any
injuries. If it is necessary to complete the investigation of an
incident, the department may require additional reports in
writing as necessary.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.014. ADMINISTRATIVE PENALTY. (a) The director may
assess an administrative penalty against an employer who violates
this chapter, board rules adopted under this chapter, or an order
issued under this chapter.
(b) If the department finds one or more violations of this
chapter, the director may issue a notice of violation to the
employer. The notice of violation shall specifically describe the
violation, refer to the applicable section or subsection of the
chapter, and state the amount of the penalty, if any, to be
assessed by the director.
(c) An employer who receives a notice of violation may respond
to the department in writing within 15 days after the date of
receipt of the notice of violation in one of the ways provided by
Subsection (d), (e), or (f).
(d) If the employer disputes the validity of the violation and
has reason to believe that the findings of the department were
based on inaccurate or incomplete information, the employer may
request an informal conference with representatives of the
department. The purpose of an informal conference is to permit
the employer to meet with department representatives to discuss
the basis of the violation and to provide information to the
department. The department shall schedule the informal
conference. A request for an informal conference made in bad
faith is a violation of this chapter.
(e) The employer may correct the violation and certify to the
department that the corrections have been made.
(f) The employer may request a hearing.
(g) Following an informal conference, the department shall
respond in writing to the employer, stating whether the
department intends to withdraw the notice of violation or pursue
it. If the department intends to pursue the notice of violation,
the employer may respond as provided by either Subsection (h) or
(i) within 10 days after the date of receipt of the department's
correspondence.
(h) The employer may correct the violation and certify to the
department that the corrections have been made.
(i) The employer may request a hearing.
(j) A request for an informal conference or a statement by an
employer that the employer is in compliance with the provision of
this chapter does not waive the employer's right to a hearing.
(k) The director may not assess an administrative penalty for
any violation that has been corrected within 15 days after the
date of receipt of the notice of violation, the date of receipt
of the department's response by the employer, or 10 days after
the date of receipt by the employer of the department's response
to the informal conference provided for in Subsection (c),
whichever is later.
(l) In determining the amount of the penalty, the director shall
consider:
(1) the employer's previous violations;
(2) the seriousness of the violation;
(3) any hazard to the health and safety of the employee;
(4) the employer's demonstrated good faith;
(5) the duration of the violation; and
(6) other matters as justice may require.
(m) Each day a violation continues may be considered a separate
violation.
(n) The penalty may not exceed $500 for each violation.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.0141. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE. (a)
An administrative penalty may be assessed only after an employer
charged with a violation is given an opportunity for a hearing.
(b) If a hearing is held, the director shall make findings of
fact and shall issue a written decision regarding the occurrence
of the violation and the amount of the penalty that may be
warranted.
(c) If the employer charged with the violation does not request
a hearing in a timely manner, the director may assess a penalty
after determining that a violation has occurred and the amount of
the penalty that may be warranted.
(d) After making a determination under this section that a
penalty is to be assessed against an employer, the director shall
issue an order requiring that the employer pay the penalty.
(e) The director may consolidate a hearing held under this
section with another proceeding.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.0142. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
REVIEW. (a) Not later than the 30th day after the date an order
finding that a violation has occurred is issued, the director
shall inform the employer against whom the order is issued of the
amount of the penalty for the violation.
(b) Within 30 days after the date the director's order is final
as provided by Subchapter F, Chapter 2001, Government Code, the
employer shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation
and the amount of the penalty; or
(3) without paying the amount of the penalty, file a petition
for judicial review contesting the occurrence of the violation,
the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(c) Within the 30-day period, an employer who acts under
Subsection (b)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court for placement
in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by
the court for the amount of the penalty and that is effective
until all judicial review of the director's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the employer
stating that the employer is financially unable to pay the amount
of the penalty and is financially unable to give the supersedeas
bond; and
(B) giving a copy of the affidavit to the director by certified
mail.
(d) Subsection (c)(1) does not apply to the state or a political
subdivision. The penalty may not be enforced against the state or
a political subdivision until all judicial review has been
exhausted.
(e) If the director receives a copy of an affidavit under
Subsection (c)(2), the director may file with the court, within
five days after the date the copy is received, a contest to the
affidavit. The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the
enforcement of the penalty on finding that the alleged facts are
true. The employer who files an affidavit has the burden of
proving that the employer is financially unable to pay the amount
of the penalty and to give a supersedeas bond.
(f) If the employer does not pay the amount of the penalty and
the enforcement of the penalty is not stayed, the director may
refer the matter to the attorney general for collection of the
amount of the penalty.
(g) Judicial review of the order of the director:
(1) is instituted by filing a petition as provided by Subchapter
G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(h) If the court sustains the occurrence of the violation, the
court may uphold or reduce the amount of the penalty and order
the employer to pay the full or reduced amount of the penalty. If
the court does not sustain the occurrence of the violation, the
court shall order that no penalty is owed.
(i) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the employer paid the
amount of the penalty and if that amount is reduced or is not
upheld by the court, the court shall order that the appropriate
amount plus accrued interest be remitted to the employer. The
rate of the interest is the rate charged on loans to depository
institutions by the New York Federal Reserve Bank, and the
interest shall be paid for the period beginning on the date the
penalty was paid and ending on the date the penalty is remitted.
If the employer gave a supersedeas bond and if the amount of the
penalty is not upheld by the court, the court shall order the
release of the bond. If the employer gave a supersedeas bond and
if the amount of the penalty is reduced, the court shall order
the release of the bond after the employer pays the amount.
(j) All proceedings under this section are subject to Chapter
2001, Government Code.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
(53), (59), eff. Sept. 1, 1995.
Sec. 502.015. CIVIL PENALTY; INJUNCTION. (a) If it appears
that an employer has violated, is violating, or is threatening to
violate this chapter or any rule adopted or order issued under
this chapter, the director may request the attorney general or
the district, county, or city attorney of the municipality or
county in which the violation has occurred, is occurring, or may
occur to institute a civil suit for:
(1) injunctive relief to restrain the employer from continuing
the violation or threat of violation;
(2) the assessment and recovery of a civil penalty for a
violation; or
(3) both the injunctive relief and the civil penalty.
(b) The penalty may be in an amount not to exceed $2,000 a day
for each violation, with a total not to exceed $20,000 for that
violation.
(c) In determining the amount of the penalty, the court shall
consider the employer's history of previous violations, the
seriousness of the violation, any hazard to health and safety of
the public, the demonstrated good faith of the employer charged,
and other matters as justice may require.
(d) Any civil penalty recovered in a suit instituted by the
attorney general under this chapter shall be deposited in the
state treasury to the credit of the general revenue fund. Any
civil penalty recovered in a suit instituted by a local
government under this chapter shall be paid to the local
government.
(e) This section does not affect any other right of an employee
or any other employer to receive compensation for damages under
other law.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.016. CRIMINAL PENALTY. An employer who is required to
disclose hazard information under this chapter and who
proximately causes an occupational disease or injury to an
individual by knowingly disclosing false hazard information or
knowingly failing to disclose hazard information provided on an
MSDS commits an offense that is punishable by a fine of not more
than $10,000 for each violation. Each day of violation
constitutes a separate offense, except that the fine may not
exceed $100,000 for that violation. This section does not affect
any other right of an employee or any other employer to receive
compensation for damages under other law.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,
1993.
Sec. 502.017. EMPLOYEE NOTICE; RIGHTS OF EMPLOYEES. (a) An
employer shall post and maintain adequate notice, at locations
where notices are normally posted, informing employees of their
rights under this chapter. If the director does not prepare the
notice under Section 502.008, the employer shall prepare the
notice.
(b) Employees who may be exposed to hazardous chemicals shall be
informed of the exposure and shall have access to the workplace
chemical list and MSDSs for the hazardous chemicals. Employees,
on request, shall be provided a copy of a specific MSDS with any
trade secret information deleted. In addition, employees shall
receive training concerning the hazards of the chemicals and
measures they can take to protect themselves from those hazards.
Employees shall be provided with appropriate personal protective
equipment. These rights are guaranteed.
(c) An employer may not discharge, cause to be discharged,
otherwise discipline, or in any manner discriminate against an
employee because the employee has:
(1) filed a complaint;
(2) assisted an inspector of the department who may make or is
making an inspection under Section 502.011;
(3) instituted or caused to be instituted any proceeding under
or related to this chapter;
(4) testified or is about to testify in a proceeding under this
chapter; or
(5) exercised any rights afforded under this chapter on behalf
of the employee or on behalf of others.
(d) Pay, position, seniority, or other benefits may not be lost
as the result of the exercise of any right provided by this
chapter.
(e) A waiver by an employee of the benefits or requirements of
this chapter is void. An employer's request or requirement that
an employee waive any rights under this chapter as a condition of
employment is a violation of this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Renumbered from Health & Safety Code Sec. 502.013 and amended
by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993.
Sec. 502.018. STANDARD FOR PHYSICIAN TREATMENT. For the
purposes of this chapter, the requirements in the OSHA standard
for physicians treating employees (29 CFR 1910.1200(l)) apply to
physicians treating persons.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Renumbered from Health & Safety Code Sec. 502.015 and amended
by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993.
Sec. 502.019. RULES. The board may adopt rules and
administrative procedures reasonably necessary to carry out the
purposes of this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Renumbered from Health & Safety Code Sec. 502.016 and amended
by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993.
Sec. 502.020. WORKPLACE SAFETY FOR INMATES. A person imprisoned
in a facility operated by or for the Texas Department of Criminal
Justice is not an employee for the purposes of this chapter. The
Texas Department of Criminal Justice shall provide a person
imprisoned in a facility operated by or for the Texas Department
of Criminal Justice the protections from exposure to hazardous
chemicals in the workplace as provided for in this chapter.
Added by Acts 1999, 76th Leg., ch. 1332, Sec. 1, eff. June 19,
1999; Acts 1999, 76th Leg., ch. 1501, Sec. 1, eff. June 19, 1999.
Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 10.004, eff.
Sept. 1, 2001.