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(1) Section 50-71-114, MCA, of the Montana Occupational Safety and Health Act provides that the Department of Labor and Industry may adopt, amend, repeal, and enforce rules for the prevention of accidents to be known as "safety codes" in every employment and place of employment, including the repair and maintenance of such places of employment to render them safe. The federal Occupational Safety and Health Act of 1970 does not include safety standards coverage for employees or political subdivisions of this state. It is the intent of this rule that public sector employees and political subdivisions of this state shall be protected to the greatest extent possible by the same safety standards for employments covered by the federal Occupational Safety and Health Act of 1970. The department is therefore adopting by reference certain occupational safety and health standards, adopted by the United States Secretary of Labor under the federal Occupational Safety and Health Act of 1970. The department has determined, with the assent of the Secretary of State, that publication of the rules would be unduly cumbersome and expensive. Copies of the rules adopted by reference are available and may be obtained at cost from the Montana Department of Labor and Industry, P.O. Box 1728, Helena, Montana 59624-1728, or the Superintendent of Documents, United States Government Printing Office, 941 North Capitol Street, Washington, D.C. 20401.

(2) As used in the rules adopted by reference in (3) and (4)(a), unless the context clearly requires otherwise, the following definitions apply:

(a) "Act" means the Montana Occupational Safety and Health Act (50-71-111 through 50-71-128, MCA).

(b) "Assistant secretary of labor" or "secretary" means the commissioner of the Montana Department of Labor and Industry.

(c) "Employee" or "public sector employee" means every person in this state, including a contractor other than an independent contractor, who is in the service of a public sector employer, as defined below, under any appointment or contract of hire, expressed or implied, oral, or written.

(d) "Employer" or "public sector employer" means this state and each county, city and county, city school district, irrigation district, all other districts established by law, and all public corporations and quasi public corporations and public agencies therein who have any person in service under any appointment or contract of hire, expressed or implied, oral or written.

(e) "Establishment" means a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction, transportation, communications, electric, gas and sanitary services, and similar operations, an establishment exists at each main or branch office, terminal, station, etc., that either supervise such activities or are the base from which personnel carry out these activities.

(f) "Injury or illness" means an abnormal condition or disorder.

(i) An injury includes cases such as, but not limited to, a cut, fracture, sprain, or amputation.

(ii) An illness includes both acute and chronic illnesses, such as, but not limited to, a skin disease, respiratory disorder, or poisoning.

(3) The Department of Labor and Industry adopts a safety code for every place of employment conducted by a public sector employer. This safety code adopts by reference the following occupational safety and health standards found in the Code of Federal Regulations, as of July 1, 2018:

(a) Title 29, Part 1910; and

(b) Title 29, Part 1926.

(4) The Department of Labor and Industry adopts reporting requirements related to occupational safety and health for every place of employment conducted by a public sector employer.

(a) The reporting requirements adopted by reference are the following occupational safety and health reporting requirements found in the Code of Federal Regulations, as of July 1, 2018:

(i) 29 CFR 1904.4 through 1904.11;

(ii) 29 CFR 1904.29 through 1904.33;

(iii) 29 CFR 1904.35 and 1904.36; and

(iv) 29 CFR 1904.39 through 1904.42.

(b) For the purposes of reporting fatalities, hospitalizations, amputations, and loss of an eye pursuant to 29 CFR 1904.39, the employer is to contact the Montana Department of Labor and Industry safety bureau by:

(i) electronic submission to the reporting application at the safety bureau's public web site at http://erd.dli.mt.gov/safety-health; or

(ii) telephone at 1-844-669-5461 (toll free).

(5) All sections adopted by reference are binding on every public sector employer even though the sections are not separately printed in a separate state pamphlet and even though they are omitted from publication in the Montana Administrative Register and the Administrative Rules of Montana. The safety standards and reporting requirements adopted by this rule and printed in the Code of Federal Regulations, Title 29, as of July 1, 2018, are considered under this rule as the printed form of the safety code, and shall be used by the department and all public sector employers, employees, and other persons when referring to the provisions of the safety code. All the provisions, remedies, and penalties found in the Montana Occupational Safety and Health Act apply to the administration of the provisions of the safety code and reporting requirements adopted by this rule.

(6) For convenience, the federal number of a particular section found in the Code of Federal Regulations should be used when referring to a section in the safety code adopted in (3). The federal number is to be preceded by the term (5). Thus, when section 1910.27 of the Code of Federal Regulations pertaining to fixed ladders is to be referred to or cited, the correct cite would be "subsection (5) 1910.27 of section 24.30.102 ARM" or "ARM 24.30.102(5) 1910.27".

This rule has been repealed.

(1) In order to require the state and every political subdivision of this state to furnish to its employees a place of employment free from recognized hazards likely to cause death or serious physical harm to employees, the Department of Labor and Industry has adopted ARM 24.30.102. In accordance with such rules, the department is entitled to conduct inspections and to issue citations for alleged violations. With respect to such power the following provisions apply:

(a) Each employer shall post and keep posted a notice or notices, to be furnished by the department's Safety Bureau, informing employees of the protections and obligations provided for in the Montana Occupational Safety and Health Act. Such notice or notices shall be posted by the employer in each public entity 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.

(b) Any representative of the safety bureau appearing at any place of employment including, but not limited to, any field operation, for the purpose of carrying out the intent and purpose of the Montana Occupational Safety and Health Act, shall be allowed entry without delay and at reasonable times.

(c) Any safety bureau representative may consult with employees concerning matters of occupational safety and health to the extent the representative deems necessary for the conduct of an effective and thorough inspection. During the course of an inspection, any employee shall be afforded an opportunity to bring any violation of the Montana Occupational Safety and Health Act which the employee has reason to believe exists in the workplace to the attention of the safety bureau representative.

(d) Upon receipt of any citation under the Montana Occupational Safety and Health Act, the employer shall immediately post an unedited legible copy in a prominent place where it will be readily observable by all affected employees. A copy of the completed Mandatory Inspection Response form(s) shall be posted at the same location the citations were posted no later than the time the original Mandatory Inspection Response form is submitted to the safety bureau. It shall remain posted for 30 days or until all abatement action has been approved by the safety bureau, whichever period is longer.

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(IS HEREBY TRANSFERRED)

(IS HEREBY TRANSFERRED)

(IS HEREBY TRANSFERRED)

This rule has been repealed.

(a) "Act" means the Montana Coal Mining Code.

(b) "Bureau of mines" means the Department of Labor and Industry.

(c) "Certified" or "registered" means a person certified or registered by the Department of Labor and Industry.

(d) "Coal mine district manager" means the Department of Labor and Industry.

(e) "Department of the Interior" means the Department of Labor and Industry.

(f) "Mining enforcement and safety administration" means the Department of Labor and Industry.

(g) "Qualified person" means an individual deemed qualified by the Department of Labor and Industry and designated by the operator to make tests and examination required by the Department of Labor and Industry.

(h) "Secretary" means the administrator of the Employment Relations Division of the Department of Labor and Industry.

(2) The Department of Labor and Industry adopts under 50-73-103 , MCA, coal mine safety standards to protect employees who work in coal mines in this state. The following standards are adopted by reference to certain safety and health rules and standards that have been adopted by the federal government and are found in the Code of Federal Regulations (CFR) , Title 30, revised as of July 1, 2006:

(a) 30 CFR part 41, pertaining to notification by the mine of its legal identity;

(b) 30 CFR part 47, pertaining to hazard communication;

(c) 30 CFR part 48, pertaining to training and retraining of miners;

(d) 30 CFR part 62, pertaining to occupational noise exposure;

(e) 30 CFR part 70, pertaining to mandatory health standards in underground coal mines;

(f) 30 CFR part 71, pertaining to mandatory health standards in surface coal mines and surface work areas of underground coal mines;

(g) 30 CFR part 72, pertaining to health standards for coal mines;

(h) 30 CFR part 74, pertaining to coal mine dust personal sampler units;

(i) 30 CFR part 75, pertaining to mandatory safety standards in underground coal mines, except:

(i) 30 CFR 75.155, which is not applicable because Montana licensing statutes for crane and hoist operators apply; and

(ii) 30 CFR 75.1200-2, which is not applicable because 50-73-201 , MCA, provides that mine maps must be made to a scale of not less than 200 feet to 1 inch; and

(j) 30 CFR part 77, pertaining to mandatory safety standards in surface coal mines and surface work areas of underground coal mines, except:

(i) as to the requirements of 30 CFR 77.807.1, the minimum height for high voltage power lines is 20 feet above the ground; and

(ii) in addition to the requirements of 30 CFR 77.1710, there are additional requirements that:

(A) except for personnel who work in an office or on clerical matters under nonhazardous conditions, rings may not be worn around a mine or plant; and

(B) persons with long hair shall have their hair confined while working around moving equipment and machinery.

(3) All sections adopted and referred to above are binding on every employer who is covered by the Montana Coal Mining Code even though the sections are not separately printed in a separate state pamphlet and are omitted from publication in the Montana Administrative Register and the Administrative Rules of Montana. The sections referred to above that are contained in the Code of Federal Regulations referred to above are considered under this rule as the printed form of the safety rules and standards adopted under this rule, and must be used by the Department of Labor and Industry and all employers, employees, and other persons when referring to the provisions of the safety rules and standards adopted in this rule. All the provisions, remedies, and penalties found in the Montana Coal Mining Code ( 50-73-101 through 50-73-418 , MCA) apply to the administration of the provisions of the safety rules and standards adopted in this rule. A copy of the rules adopted by reference are available in printed form by contacting the Montana Department of Labor and Industry, Employment Relations Division, Safety Bureau, P.O. Box 1728, Helena, Montana 59624-1728, or the Superintendent of Documents, United States Government Printing Office, 941 North Capitol Street, Washington, D.C. 20401.

(4) For convenience, the federal number of a particular section found in the Code of Federal Regulations should be used when referring to a section in the safety rules and standards adopted in (2) above. The federal number is to be preceded by the term (4) . Thus, when section 70.100 of the Code of Federal Regulations pertaining to dust standards is to be referred to or cited, the correct cite would be "subsection (4) 70.100 of section 24.30.1302 ARM" or "ARM 24.30.1302(4) 70.100".

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(1) The department of labor and industry adopts and incorporates by reference the United States department of labor, mine safety and health administration's regulations, Title 30, Code of Federal Regulations, Parts 46, 47, 48, 49, 50, 56, 57, 58 and 62, revised as of July 1, 2004.

(2) The regulations incorporated by reference in (1) relate to the following:

(a) training and retraining of miners engaged in shell dredging or employed at sand, gravel, surface stone, surface clay, colloidal phosphate, or surface limestone mines;

(b) hazard communication (HAZCOM) ;

(c) training and retraining of miners;

(d) mine rescue teams;

(e) notification, investigation, reports and records of accidents, injuries, illnesses, employment and production in mines;

(f) safety and health standards--surface metal and nonmetal mines;

(g) safety and health standards--underground metal and nonmetal mines;

(h) health standards for metal and nonmetal mines; and

(i) occupational noise exposure.

(3) Copies of the regulations incorporated by reference in (1) may be obtained at cost from the Montana Department of Labor and Industry, P.O. Box 1728, Helena, Montana 59624-1728, or the Superintendent of Documents, United States Government Printing Office, 941 North Capitol Street, Washington, D.C. 20401.�

(IS HEREBY TRANSFERRED)

(2) The purpose of these rules is to set forth requirements employers must meet to comply with the Safety Culture Act passed by the 1993 Montana legislature. These rules also offer employers guidelines for implementation of workplace safety programs to help reduce the incidence of occupational injury and illness by promoting safety in the workplace. Nothing in these rules relieves the employer from compliance with other industry or association standards or other legal requirements.

(2) "Employee" means any person defined as an employee in the Workers' Compensation Act, 39-71-118 , MCA.

(3) "Employer" means any person or business entity defined as an employer in the Workers' Compensation Act, 39-71-117 , MCA.

(a) the personal assistant is providing services to the disabled person pursuant to 53-6-145 , MCA, and rules adopted by the department of public health and human services implementing that statute; and

(b) the personal assistant is the employee of another person or entity that has the right to exercise an employer's control over the personal assistant, including the right to discipline and terminate employment.

(a) provide each new employee with a general safety orientation containing information common to all employees and appropriate to the business operations, before they begin their regular job duties. The department recommends this orientation contain both oral and written instruction and include, but not be limited to information on:

(i) accident and hazard reporting procedures;

(ii) emergency procedures;

(iii) fire safety;

(iv) first aid;

(v) personal protective equipment; and

(vi) work site hazards;

(b) provide job or task-specific safety training appropriate for employees before they perform that job or task without direct supervision. The department recommends this training:

(i) include specific safety rules, procedures and hazards;

(ii) clearly identify the employer's and employee's responsibilities regarding safety in the workplace;

(iii) be conducted by personnel knowledgeable of the task being trained; and

(iv) be conducted:

(A) when the safety program is established;

(B) whenever employee job assignments change;

(C) whenever new substances, processes, procedures or equipment are introduced to the work place; and

(D) whenever anew hazard is identified;

(c) offer continuing regular refresher safety training.

This training could be accomplished through periodic safety meetings or various other formats. The department recommends this training:

(i) be held as often as is appropriate, but at least annually; and

(ii) contain material to maintain and expand knowledge and awareness of safety issues in the workplace;

(d) provide a system for the employer and their employees to develop an awareness and appreciation of safety through tools such as:

(i) newsletters;

(ii) periodic safety meetings;

(iii) posters; and

(iv) safety incentive programs;

(e) provide periodic self-inspection for hazard assessment when the safety program is implemented, new worksites are established and thereafter as is appropriate to the business operations, but at least annually, which:

(i) identifies hazards and unsafe work practices or conditions;

(ii) identifies corrective actions needed; and

(iii) documents corrective action taken; and

(f) include documentation of performance of activities listed in (a) through (e) above. The documentation must be retained by the employer for three years. The documentation should include:

(i) the date, time, location and description of training, inspections and corrective actions; and

(ii) a list of the participants, i.e, inspectors, trainers, employees.

(2) The department suggests that employers contact their insurer for advice and assistance in implementing safety programs that are consistent with these rules.

(2) This comprehensive and effective safety program must include all of the mandatory elements contained in ARM 24.30.2521 (although it need not necessarily include all of the recommended items contained in that rule) and must also include, but need not be limited to:

(a) policies and procedures that assign specific safety responsibilities and safety performance accountability. The department recommends these policies and procedures:

(i) include a statement of top management commitment to the safety program;

(ii) encourage and motivate employee involvement in the safety program;

(iii) define safety responsibilities for managers, safety personnel, supervisors and employees;

(iv) be reflected in job descriptions and performance evaluations, if they exist; and

(v) be communicated and accessible to all employees; and

(b) procedures for reporting, investigating and taking corrective action on all work-related incidents, accidents, injuries, illnesses and known unsafe work conditions or practices. The department recommends these procedures be nonpunitive and that they include, but need not be limited to:

(i) provisions for timely and effective reporting, investigating and for taking corrective action;

(ii) recommendations and follow-up for corrective action;

(iii) documentation;

(iv) signature requirements for reports, investigations and corrective action; and

(v) periodic evaluation of the procedure's effectiveness.

(2) The Montana legislature has mandated the formation of safety committees that include representatives of the employer and the employees in order to foster a safety culture in Montana workplaces. It is the intent of the department that employer and employees meet together for the purpose of creating a safety culture in Montana workplaces and reducing on-the-job injuries and illnesses, in the hope that by improving occupational safety, workers' compensation insurance rates for all industries in Montana will be limited. Accordingly, the department is exercising its delegated authority to require that employers form safety committees in order to carry out the statutory duty imposed by 39-71-1505 , MCA.

(3) Federal law prohibits domination of a safety committee by management.

(4) Every safety committee shall:

(a) be composed of employee and employer representatives and hold regularly scheduled meetings, at least once every 4 months. The committee(s) should be of sufficient size and number to provide for effective representation of the workforce. Employers with multiple workplaces may elect to have more than one committee. The safety committee(s) shall:

(i) include in its membership representatives of employees and employer, with employer representatives not exceeding employee representatives; and

(ii) include in its employee membership volunteers or members elected by their peers. Where employees are represented by a labor organization(s) that organization may choose to appoint or conduct elections to select employee members to serve on safety committee(s) ; and

(b) include safety committee activities that assist the employer in fact finding. The department recommends that the committee document its activities (i.e., attendees, subjects discussed) and act as a fact finding body and report to the employer regarding:

(i) assessing and controlling hazards;

(ii) assessing safety training and awareness topics;

(iii) communicating with employees regarding safety committee activities;

(iv) developing safety rules, policies and procedures;

(v) educating employees on safety-related topics;

(vi) evaluating the safety program on a regular basis;

(vii) inspecting the workplace;

(viii) keeping job specific training current;

(ix) motivating employees to create a safety culture in the workplace; and

(x) reviewing incidents of workplace accidents, injuries and illnesses.

(5) In order to promote the purpose of the Montana Safety Culture Act, the department finds that the recommendations of a safety committee are not intended to establish a standard of care or duty owed by the employer to either employees or third persons, and should not be used to establish a standard of care or duty that does not otherwise exist in law.

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(2) The average incidence rate is based upon Montana data compiled and published by the U.S. department of labor, bureau of labor statistics. If sufficient credible Montana data is lacking for a given 2-digit SIC code, the department will use national data.

(3) A copy of the current list of average incidence rates is available by writing the department's Safety, Bureau, P.O. Box 1728, Helena, Montana, 59624-1728, or telephoning (406) 444-6401.

(2) The department may grant a waiver of the safety committee requirement to a plan no. 1 self-insurer if the self-insurer presents sufficient evidence that it has an effective safety program. Such a waiver is valid for one year, and may be renewed. If the self-insurer is a member of the Montana selfinsurers guaranty fund, the decision of the department to grant a waiver is not effective unless the Montana self-insurers guaranty fund concurs in the decision. Evidence must include, but need not be limited to, proof of the following:

(a) a written safety plan that complies with the provisions of the Montana Safety Culture Act and the rules implementing the Act;

(b) documentary evidence of employee participation in the safety program; and

(c) a 3-year average lost workday incidence rate for occupational injuries and illnesses that is not greater than 55% of the current average incidence rate for Montana entities with the same 2-digit SIC code.

(3) If the self-insurer disagrees with a department decision not to grant a waiver, the self-insurer may request a contested case hearing.

(2) The department may grant a waiver of the safety committee requirement to a plan no. 1 self-insurer if the self-insurer presents sufficient evidence that it has an effective safety program. Such a waiver is valid for one year, and may be renewed. If the self-insurer is a member of the Montana self-insurers guaranty fund, the decision of the department to grant a waiver is not effective unless the Montana self-insurers guaranty fund concurs in the decision.

(3) The self-insured group may seek either a waiver for all members of the group or only for certain individual members of the group. The decision on the scope of the waiver request lies solely within the discretion of the self-insured group.

(4) The self-insurer seeking a waiver must prove the existence of an effective safety program. Evidence must include, but need not be limited to, proof of the following:

(a) if the request is for an individual employer that is a member of the group:

(i) the employer has a written safety plan that complies with the provisions of the Montana Safety Culture Act and the rules implementing the Act;

(ii) documentary evidence of employee participation in the safety program; and

(iii) a 3-year average lost workday incidence rate for occupational injuries and illnesses that is not greater than 55% of the current average incidence rate for Montana entities with the same 2-digit SIC code; or

(b) if the request is for the group as a whole:

(i) each member of the group has a written safety plan that complies with the provisions of the Montana Safety Culture Act and the rules implementing the Act;

(ii) documentary evidence of employee participation in the safety program; and

(iii) each member has an individual 3-year average lost workday incidence rate for occupational injuries and illnesses that is not greater than 55% of the current average incidence rate for Montana entities with the same 2-digit SIC code.

(5) A group self-insurer that calculates experience modification factors in substantial accordance with the methodology used by the workers' compensation advisory organization designated pursuant to 33-16-1023 , MCA, may use experience modification factors in lieu of the average lost workday incidence rate provided in (4) (a) (iii) and (4) (b) (iii) . If an experience modification factor is used, a waiver will not be granted if the factor is greater than .87.

(6) If the self-insurer disagrees with a department decision not to grant a waiver, the self-insurer may request a contested case hearing.

(2) An insurer may grant a waiver of the safety committee requirement to an employer for one year, which may be renewed, if the employer provides to the insurer sufficient evidence of the following:

(a) an effective written safety plan that complies with the provisions of the Montana Safety Culture Act and the rules implementing the Act, including documentary evidence of employee participation in the safety program; and

(b) (i) a satisfactory experience modification factor, not greater than .87, if the employer has an experience modification factor established. The experience modification factors must be calculated in substantial accordance with the methodology used by the workers' compensation advisory organization designated pursuant to 33-16-1023 , MCA; or

(ii) a low incident of workplace injuries. If the employer does not have an experience modification factor established, a low incidence of workplace injuries is demonstrated by a 3-year average lost workday incidence rate for occupational injuries and illnesses that is not greater than 55% of the current average incidence rate for Montana entities with the same 2-digit sic code.

(3) An insurer may uniformly require stricter standards or additional safety-related criteria from its insureds as a condition of granting a waiver of the safety committee requirement. An insurer may also refuse to grant any waivers, if such refusal is uniformly applied to all of the insurer's insureds.

(4) Disputes between an insurer and an employer concerning the granting or denial of a waiver must be resolved in the manner provided by the insurance contract for resolution of disputes.