Chapter 11.10
CONSTRUCTION SAFETY
Sections:
11.10.040 Adoption of safety standards.
11.10.080 Compliance by employees.
11.10.090 Reporting of violations.
11.10.100 Director’s duty to investigate.
11.10.110 Violations of Chehalis Tribe safety standards.
11.10.130 Interference with an inspector conducting his/her authorized duties.
11.10.140 Right to appeal notices of violation.
11.10.150 Requests for variances.
11.10.160 Reporting of fatality or accident information.
11.10.170 Investigation of a fatality or accident.
11.10.180 Reporting of a complaint against an inspector.
11.10.190 Confidentiality – Trade secrets.
11.10.200 Retaliation against any person who reports a violation of this chapter.
11.10.010 Purpose.
The Business Committee finds that construction activities inherently pose a threat to the health and safety of Tribal lands residents. By their nature, excavations and building of structures contain a multitude of hazards potentially resulting in injury or death to workers and even bystanders. These hazards can only be eliminated by the adoption and enforcement of regulations designed to protect health and safety. Accordingly, the Tribe hereby exercises its inherent authority to minimize the occurrence of injuries and harm to persons engaged in construction activities within the Reservation and any off-Reservation lands that the Tribe owns and manages. [Res. 2016-17; Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.010.]
11.10.020 Territorial scope.
This chapter shall apply to all lands over which the Chehalis Tribe exercises jurisdiction, including any off-Reservation lands owned and managed by the Tribe. [Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.020.]
11.10.030 Definitions.
The following terms when used in this chapter shall have the meaning set forth in this section:
“Chehalis Tribe construction safety standards” are those standards adopted by the Business Committee for the purpose of assuring the safety of employees on construction sites within the jurisdiction of the Chehalis Tribe. Such standards must meet or exceed the construction safety standards adopted by the Federal Occupational Safety and Health Administration generally found at 29 C.F.R. Part 1926.
“Chief of Police” means the Director of the Chehalis Tribe’s Public Safety Department.
“Construction activities” includes the laying of footings and/or foundations, erection of buildings, houses, sheds, and any other above-ground structures for habitation, business use, or storage that require a building permit, but not including fireworks stands or tents. “Construction activities” also include installation of underground utilities and infrastructure, indoor and outdoor remodeling of structures, including painting, re-roofing and re-siding.
“Director” means the Director of the Chehalis Tribe’s Planning Department.
“Employee” means any person hired, contracted with, or otherwise working at the behest of an employer to engage in construction activities.
“Employer” means any person, corporation, partnership, or any other business entity, including the Chehalis Tribe, that engages in any construction activity.
“Inspector” means the person(s) designated by the Director to conduct workplace inspections to assure compliance with this chapter.
“Safety plan” is a site-specific worksite plan of action addressing specific safety concerns and protection measures needed to comply with Chehalis Tribe construction safety standards. The plan will delineate the roles and obligations of employers, employees, and supervisors for meeting Chehalis Tribe construction safety standards. [Res. 2016-17; Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.030.]
11.10.040 Adoption of safety standards.
By this chapter, the Business Committee adopts the construction safety standards adopted by the Federal Occupational Safety and Health Administration (OSHA) generally found at 29 C.F.R. Part 1926. The Director may propose and the Business Committee may approve additional safety standards, so long as such standards meet or exceed the employee protection requirements of the OSHA standards. [Res. 2016-17; Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.040.]
11.10.050 Duty of employers.
Employers shall be responsible for assuring activities are conducted in compliance with Chehalis Tribe safety standards. [Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.050.]
11.10.060 Safety plans.
A. All employers engaged in construction activities must have a safety plan in place by the time construction activities begin. Supervisors and employees must be aware of their responsibilities under the applicable safety plan. This may be accomplished by distributing the safety plan to supervisors and employees and/or holding safety meetings that address the responsibilities of supervisors and employees under the safety plan. Employers shall be responsible for assuring that employees comply with the provisions of the relevant safety plan.
B. Upon adoption of the resolution codified in this chapter, the Director shall notify all employers actively engaged in construction activities that they are required to develop safety plans for each construction site, consistent with Chehalis Tribe construction safety standards. Safety plans must be submitted prior to the commencement of construction activities and no later than 10 business days of issuance of a building permit or be found in violation of this chapter. Safety plans must be submitted to the Director. A copy of the plan will be maintained by the Chief of Police.
C. The Director shall make best efforts to provide written notification to employers who do business in the Tribe’s jurisdiction from time to time regarding the requirements of this chapter and the obligation to have a safety plan prior to beginning construction activities. [Res. 2016-17; Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.060.]
11.10.070 Right to inspect.
The inspector, or any other qualified person designated by the Director, shall have the right to enter any construction site between the hours of 7:00 a.m. and 6:00 p.m. seven days a week, unless safety concerns mandate inspection at a different time. This right of entry applies to any construction site or other area where work is performed by an employee or an employer, for the purpose of inspecting or investigating working conditions to assure consistency with Chehalis Tribe safety standards.
A representative of the employer and a representative of employees, or other appropriate employee, may choose to accompany the inspector, but the presence of either the employer’s representative or the employees’ representative shall not be required in order for the inspection to occur.
In making inspections and conducting investigations, the inspector shall have the right to question privately any employer or employee. [Res. 2016-17; Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.070.]
11.10.080 Compliance by employees.
Each employee shall comply with the requirements of this chapter, any applicable safety plan, and Chehalis Tribe construction safety standards that are applicable to his/her conduct in the course of employment. [Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.080.]
11.10.090 Reporting of violations.
Any employee who, in good faith, believes that there is a violation of an applicable safety plan or Chehalis Tribe construction safety standards that threatens physical harm to one or more employees may request an inspection of the construction site. Such request shall be submitted in writing to either the Director or the inspector. The request shall describe with specificity the reasons why the employee believes that there is a violation of construction safety standards. The request shall be signed by the employee, except that if the employee so requests, neither his/her name nor the name of any other employee mentioned in the request shall appear in any copy of the request that is either released, published, or shown to the employer. If an employee is unwilling or unable to submit a written request, the employee may submit a request by telephone through the inspector. [Res. 2016-17; Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.090.]
11.10.100 Director’s duty to investigate.
If, upon receipt of a request for inspection, the Director or inspector determines that there are reasonable grounds to believe that there may be a violation of Chehalis Tribe construction safety standards, the inspector shall inspect the construction site as soon as practicable. A copy of the request for inspection, with all names redacted if so requested by the employee, shall be furnished to the employer no later than the time of inspection. If the Director or inspector determines that there are no reasonable grounds for an inspection, then he shall notify the employee and employer in writing of that determination, and its basis. The Director shall have no obligation to provide a written response to any request submitted by telephone. [Res. 2016-17; Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.100.]
11.10.110 Violations of Chehalis Tribe safety standards.
If, upon inspection or investigation, the inspector determines that an employer has violated a Chehalis Tribe construction safety standard, or the conditions of any variance granted under this chapter, the inspector or Director shall notify the employer of the violation, specifically identify the construction safety standard violated, describe the measures necessary to remedy the violation, and identify a reasonable period of time to achieve compliance. At the discretion of the Director, which shall be guided by the seriousness of the violation and the previous record of the employer, the notice of violation may be either verbal or written and may include a fine that shall not exceed $5,000 per day for each day that the violation persists. [Res. 2016-17; Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.110.]
11.10.120 Violations of Chehalis Tribe construction safety standards posing an immediate threat to the health or safety of employees.
A. If, upon inspection or investigation, the inspector determines that there is a violation of one or more Chehalis Tribe construction safety standards that poses an immediate threat of death or serious physical harm to employees, the Director shall issue a notice of violation to the employer. The notice of violation shall describe the specific violation and the actions necessary to cure the violation. The notice shall be given to the employer and any person involved in the violation by the Director or the Director’s designee and shall also be posted at the site.
B. In addition, the notice of violation shall mandate either or both of the following actions as necessary to eliminate the threat:
1. Issue an order immediately restraining or halting the cause of the threat; or
2. Order a cessation of operations if necessary to remove or eliminate the threat.
C. At the Director’s discretion, the notice of violation may also provide for a fine of up to $5,000 for each day that the violation persists. [Res. 2016-17; Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.120.]
11.10.130 Interference with an inspector conducting his/her authorized duties.
Interference with an inspector attempting to conduct his/her authorized duties shall constitute a violation of Chehalis Tribe safety standards and shall be handled in accordance with the notice of violation process described above. Such interference shall be subject to all remedies available for a notice of violation. Each instance of interference shall constitute a separate violation. [Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.130.]
11.10.140 Right to appeal notices of violation.
The Tribal Court shall have jurisdiction to adjudicate appeals of notices of violation including review of fines, orders of cessation and, in addition, where requested may grant injunctive relief to protect worker safety. An employer or employee (aggrieved party) who has received a notice of violation has 10 business days to appeal such notice of violation. The notice of appeal shall be filed with the Tribal Court. The aggrieved party shall have an additional 10 business days within which to file the arguments and supporting evidence with the Tribal Court and the Director shall file a response no later than 10 business days thereafter. During the pendency of any appeal, any order issued by the Director for the protection of worker health and safety, other than the levying of a fine, shall be implemented or otherwise remain in place unless reversed by the Tribal Court. Upon filing a motion for a stay pending appeal, an aggrieved party may be granted a stay of the order of the Director by demonstrating irreparable harm, strong likelihood of success on the merits, and that alternative measures will provide an equivalent level of protection to employees as those ordered by the Director. Such motion must be filed within three business days of issuance of the notice of violation. The Tribe shall have three days in which to respond. The Tribal Court shall hold a hearing and issue its decision within three days of the Tribe’s response to a motion for a stay pending appeal. [Res. 2016-17; Res. 2016-17; Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.140.]
11.10.150 Requests for variances.
A variance provides an approved alternative to the requirements of this chapter as long as employees are provided with a place of equivalently safe and healthful employment. There are three kinds of variances: permanent, temporary and owner-occupied. Requests for a variance must provide the information necessary for the Director to make the required findings.
A. To grant a permanent variance, the Director must find that the proposed variance provides for health and safety conditions that are no less protective than those called for by Chehalis Tribe safety standards and that employees have been notified of the request.
B. To grant a temporary variance, the Director must find that the employer is unable to immediately comply with Chehalis Tribe safety standards, but that the employer has an effective program for coming into compliance within a reasonable amount of time. The Director may issue a time-limited interim order pending the decision on the temporary variance request.
C. Variances applicable to construction activities by owners of owner-occupied residences shall be addressed through the Tribe’s building permit process. This chapter shall not apply to the circumstances under which an owner of an owner-occupied residence engages in construction activities at the residence on his or her own behalf. In the event that an owner of an owner-occupied residence uses the services of a contractor, that contractor must comply with the terms of this chapter. [Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.150.]
11.10.160 Reporting of fatality or accident information.
The employer must report injuries requiring hospitalization to the Chehalis Chief of Police including name of the work place, location of the incident, time and date of the incident, number of fatalities or hospitalized employees, names of injured employees, contact person and phone number and a brief description of the accident. [Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.160.]
11.10.170 Investigation of a fatality or accident.
The Chehalis Chief of Police is responsible for investigation of construction site fatalities or accidents requiring hospitalization. A copy of the investigation report will be submitted to the Director. [Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.170.]
11.10.180 Reporting of a complaint against an inspector.
Complaints from the employer regarding the activities of an authorized safety inspector shall be submitted in writing within five business days of the challenged activity to the Director. The Director will investigate all complaints regarding an authorized safety inspector. [Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.180.]
11.10.190 Confidentiality – Trade secrets.
All information reported to or otherwise obtained by the Director or inspector, in connection with any inspection or proceeding under this chapter, that contains or might reveal a trade secret shall be considered confidential, except that such information may be disclosed to other officers or employees concerned with carrying out this chapter, or when relevant in any proceeding under this chapter. In any such proceeding, the Director or the Court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets. [Res. 2016-17; Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.190.]
11.10.200 Retaliation against any person who reports a violation of this chapter.
No person shall in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any action under this chapter or has provided testimony in any proceeding related to this chapter.
Any employee who believes that he/she has been discriminated against by any person in violation of this section may, within 30 days after such violation occurs, file a complaint with the Director alleging such discrimination. Upon receipt of such complaint, the Director shall cause an investigation to be made, which shall be completed in no more than 30 days. If the Director determines that the provisions of this section have been violated, an action may be brought in Tribal Court against the person(s) alleged to have violated this section. If the Director determines that the provisions of this section have not been violated, then the employee may institute the action in Tribal Court on his/her own behalf within 30 days of the Director’s determination. The Tribal Court shall have jurisdiction to restrain violations of this section and order all appropriate relief, including rehiring or reinstatement of the employee to his former position with back pay and/or to levy a fine, not to exceed $5,000. [Res. 2011-020; Res. 2007-143. Prior code § 6.3.1.200.]