101.055(5)(d)
(d) When making an inspection, a representative of the department may question privately any public employer or employee. No public employee shall suffer a loss in wages for time spent responding to any questions under this paragraph.
101.055(5)(e)
(e) A representative of the department shall have access to the records required under
sub. (7) (a) and
(b) and to any other records maintained by a public employer which are related to the purpose of the inspection.
101.055(6)(a)1.1. `Issuance.' If, as a result of inspection, the department finds a violation of a safety and health standard or variance or a condition which poses a recognized hazard likely to cause death or serious physical harm to a public employee, the department shall issue an order to the employer. A public employer who is in compliance with any standards or variances is deemed to be in compliance to the extent of the condition, practice, means, method, operation or process covered by that standard. The order shall describe the nature of the violation and the period of time within which the employer shall correct the violation. The department shall send a copy of the order to the top elected official of the political subdivision of which the public employer is a part and to the appropriate collective bargaining agent for the employees affected by the violation cited in the order, if a collective bargaining agent exists. If the order is issued as a result of an inspection requested by an employee or public employee representative, the department shall also send a copy of the order to that employee or public employee representative. Upon receipt of an order, the employer shall post the order at or near the site of violation for 3 days, or until the violation is abated, whichever is longer. The order shall be posted regardless of whether there has been a petition for a variance under
sub. (4) or for a hearing under
subd. 3. The employer shall ensure that the order is not altered, defaced or covered by other materials.
101.055(6)(a)2.
2. `Decision not to issue.' If the department decides not to issue an order in response to a request for inspection filed under
sub. (5) (a), it shall mail written notice of that decision to the public employee or public employee representative who requested the investigation. A decision under this subdivision is reviewable by the department under
subd. 3.
101.055(6)(a)3.
3. `Review by department.' A public employer or employee affected by an order or decision issued by the department under
subd. 1. or
2. or
sub. (5) (a) may obtain review of the order or decision by filing with the department a petition requesting a hearing and specifying the modification or change desired in the order or decision. A petition for a hearing must be filed with the department not later than 30 days after the order is issued or the written notification is mailed. If the department denies the request for a hearing, the denial shall be in writing and shall state the reasons for denial. If the department holds a hearing, it shall issue an order affirming, vacating or modifying the order or decision under
subd. 1. or
2. or
sub. (5) (a), within 30 days after the close of the hearing.
101.055(6)(a)4.
4. `Judicial review.' Orders and denials of requests for hearings under
subd. 3. are subject to judicial review under
ch. 227.
101.055(6)(b)
(b)
Injunction. Whenever a hazard exists in a public employer's place of employment which could reasonably be expected to cause death or serious physical harm before other procedures under this section can be carried out, the department may seek relief through an injunction or an action for mandamus as provided in
chs. 783 and
813.If the department seeks an injunction or an action for mandamus, it shall notify the affected public employer and public employees of the hazard for which relief is being sought.
101.055(7)
(7) Employer obligations for record keeping and notification. 101.055(7)(a)(a) A public employer shall maintain records of work-related injuries and illnesses and shall make reports of these injuries and illnesses to the department at time intervals specified by rule of the department. These records shall be available to the department, the employer's employees and the employees' representatives. This paragraph does not authorize disclosure of patient health care records except as provided in
ss. 146.82 and
146.83.
101.055(7)(b)
(b) A public employer shall maintain records of employee exposures to toxic materials and harmful physical agents which are required by safety and health standards adopted under
sub. (3) to be monitored or measured. A representative of the department and any affected public employee and his or her public employee representative shall be permitted to observe the monitoring and measuring and shall have access to the employer's records of the monitoring and measuring. This paragraph does not authorize disclosure of patient health care records except as provided in
ss. 146.82 and
146.83.
101.055(7)(c)
(c) A public employer shall promptly notify a public employee who has been or is being exposed to any toxic material or harmful physical agent at a level which exceeds that prescribed by the safety and health standards of the department and shall inform that public employee of any corrective action being taken.
101.055(7)(d)
(d) A public employer shall notify its employees of their protections and rights under this section by posting a summary of these protections and rights in the place of employment where notices to employees are usually posted.
101.055(7)(e)
(e) When a representative of the department enters a public employer's place of employment to make an inspection, the employer shall notify an appropriate representative of any collective bargaining unit which represents the employer's employees. The employer shall give the name of the collective bargaining unit representatives notified of the inspection to the department representative making the inspection.
101.055(8)
(8) Protection of public employees exercising their rights. 101.055(8)(ag)(ag) In this subsection, "division of equal rights" means the division of equal rights in the department of workforce development acting under the authority provided in
s. 106.54 (4).
101.055(8)(ar)
(ar) No public employer may discharge or otherwise discriminate against any public employee it employs because the public employee filed a request with the department, instituted or caused to be instituted any action or proceeding relating to occupational safety and health matters under this section, testified or will testify in such a proceeding, reasonably refused to perform a task which represents a danger of serious injury or death or exercised any other right related to occupational safety and health which is afforded by this section.
101.055(8)(b)
(b) A public employee who believes that he or she has been discharged or otherwise discriminated against by a public employer in violation of
par. (ar) may file a complaint with the division of equal rights alleging discrimination or discharge, within 30 days after the employee received knowledge of the discrimination or discharge.
101.055(8)(c)
(c) Upon receipt of a complaint, the division of equal rights shall, except as provided in
s. 230.45 (1m), investigate the complaint and determine whether there is probable cause to believe that a violation of
par. (ar) has occurred. If the division of equal rights finds probable cause it shall attempt to resolve the complaint by conference, conciliation or persuasion. If the complaint is not resolved, the division of equal rights shall hold a hearing on the complaint within 60 days after receipt of the complaint unless both parties to the proceeding agree otherwise. Within 30 days after the close of the hearing, the division of equal rights shall issue its decision. If the division of equal rights determines that a violation of
par. (ar) has occurred, it shall order appropriate relief for the employee, including restoration of the employee to his or her former position with back pay, and shall order any action necessary to ensure that no further discrimination occurs. If the division of equal rights determines that there has been no violation of
par. (ar), it shall issue an order dismissing the complaint.
101.055(8)(d)
(d) Orders of the division of equal rights under this subsection are subject to judicial review under
ch. 227.
101.055 Cross-reference
Cross-reference: See also ch.
DWD 223, Wis. adm. code.
101.055(9)
(9) Coordination of state safety and health programs. The department shall coordinate state safety and health programs and shall plan and conduct comprehensive safety and health loss prevention programs for state employees and facilities.
101.055(10)
(10) Exception for certain political subdivisions. The department is not required to expend any resources to enforce this section in political subdivisions having 10 or less employees unless it has received a complaint.
101.055 Cross-reference
Cross-reference: See also chs.
SPS 303,
330, and
332, Wis. adm. code.
101.055 Annotation
This section extends the coverage of OSHA to government employees. OSHA was meant to address tangible, measurable workplace hazards. The threat of on-the-job violence to a campus police officer is too abstract to be within the coverage afforded. The denial of a request for a hearing on a complaint seeking to require the provision of firearms to officers was proper. West v. Department of Commerce,
230 Wis. 2d 71,
601 N.W.2d 307 (Ct. App. 1999),
98-1693.
101.09
101.09
Storage of flammable, combustible and hazardous liquids. 101.09(1)(a)
(a) "Combustible liquid" means a liquid having a flash point at or above 100 degrees fahrenheit and below 200 degrees fahrenheit.
101.09(1)(am)
(am) "Federally regulated hazardous substance" means a hazardous substance, as defined in
42 USC 9601 (14).
101.09(1)(b)
(b) "Flammable liquid" means a liquid having a flash point below 100 degrees fahrenheit.
101.09(1)(c)
(c) "Flash point" means the minimum temperature at which a flammable or combustible liquid will give off sufficient flammable vapors to form an ignitable mixture with air near the surface of the liquid or within the vessel which contains the liquid.
101.09(1)(cm)
(cm) "Secondary containment" means a barrier, approved by the department, that is installed around a storage tank system and that is designed to prevent a leak from a primary tank or piping from contacting the surrounding earth or waters of the state.
101.09(2)(a)(a) Except as provided under
pars. (b) to
(d), every person who constructs, owns or controls a tank for the storage, handling or use of liquid that is flammable or combustible or a federally regulated hazardous substance shall comply with the standards adopted under
sub. (3).
101.09(2)(b)
(b) This section does not apply to storage tanks which require a hazardous waste license under
s. 291.25.
101.09(2)(c)
(c) This section does not apply to storage tanks which are installed above ground level and which are less than 5,000 gallons in capacity.
101.09(2)(cm)
(cm) Any rules promulgated under
sub. (3) requiring an owner to test the ability of a storage tank, connected piping or ancillary equipment to prevent an inadvertent release of a stored substance do not apply to storage tanks that satisfy all of the following:
101.09(2)(cm)3.
3. Are used to store heating oil for residential, consumptive use on the premises where stored.
101.09(2)(d)
(d) This section does not apply to a pressurized natural gas pipeline system regulated under
49 CFR 192 and
193.
101.09(3)(a)(a) The department shall promulgate by rule construction, maintenance and abandonment standards applicable to tanks for the storage, handling or use of liquids that are flammable or combustible or are federally regulated hazardous substances, and to the property and facilities where the tanks are located, for the purpose of protecting the waters of the state from harm due to contamination by liquids that are flammable or combustible or are federally regulated hazardous substances. The rule shall comply with
ch. 160. The rule may include different standards for new and existing tanks, but all standards shall provide substantially similar protection for the waters of the state. The rule shall include maintenance requirements related to the detection and prevention of leaks. The rule may require any person supplying heating oil to any noncommercial storage tank for consumptive use on the premises to submit to the department, within 30 days after the department requests, the location, contents and size of any such tank.
101.09(3)(b)
(b) The department may transfer any information which the department receives under
par. (a) to any other agency or governmental unit. The department and any such agency shall treat the name of the owner and the location of any noncommercial storage tank which stores heating oil for consumptive use on the premises, required to be submitted to the department under
par. (a), as confidential and shall not permit inspection or copying under
s. 19.35 of any record containing the information.
101.09(3)(c)
(c) The rule promulgated under
par. (a) may require the certification or registration of persons who install, remove, clean, line, perform tightness testing on and inspect tanks and persons who perform site assessments. Any rule requiring certification or registration shall also authorize the revocation or suspension of the certification or registration.
101.09(3)(d)
(d) The department shall promulgate a rule specifying fees for plan review and inspection of tanks for the storage, handling, or use of flammable or combustible liquids and for any certification or registration required under
par. (c).
101.09(3m)
(3m) Secondary containment requirements. 101.09(3m)(a)(a) In this subsection, "hazardous substance" means a combustible liquid, a flammable liquid, or a federally regulated hazardous substance.
101.09(3m)(b)
(b) The department may not impose any requirement that specifies that pipe connections at the top of a storage tank and beneath all freestanding pumps and dispensers that routinely contain a hazardous substance be placed within secondary containment sumps, if the pipe connections were installed or in place on or before February 1, 2009. This subsection does not apply after December 31, 2020.
101.09(4)(b)
(b) The department shall issue orders directing and requiring compliance with the rules and standards of the department adopted under this section whenever, in the judgment of the department, the rules or standards are threatened with violation, are being violated or have been violated.
101.09(4)(c)
(c) The circuit court for any county where violation of such an order occurs has jurisdiction to enforce the order by injunctive and other appropriate relief.
101.09(5)
(5) Penalties. Any person who violates this section or any rule or order adopted under this section shall forfeit not less than $10 nor more than $5,000 for each violation. Each violation of this section or any rule or order under this section constitutes a separate offense and each day of continued violation is a separate offense.
101.09 Cross-reference
Cross-reference: See also ch.
SPS 310, Wis. adm. code.
101.10
101.10
Storage and handling of anhydrous ammonia; theft of anhydrous ammonia and anhydrous ammonia equipment. 101.10(1)(a)
(a) "Agricultural activity" means planting, cultivating, propagating, fertilizing, nurturing, producing, harvesting, or manufacturing agricultural, horticultural, viticultural, or dairy products; forest products; livestock; wildlife; poultry; bees; fish; shellfish; or any products of livestock, wildlife, poultry, bees, fish, or shellfish.
101.10(1)(b)
(b) "Anhydrous ammonia equipment" means any equipment that is used in the application of anhydrous ammonia for an agricultural purpose or that is used to store, hold, transport, or transfer anhydrous ammonia.
101.10(1)(c)
(c) "Transfer" means to remove from a container.
101.10(2)
(2) Rules. The department shall promulgate rules that prescribe reasonable standards relating to the safe storage and handling of anhydrous ammonia.
101.10(3)
(3) Prohibitions. No person may do any of the following:
101.10(3)(a)
(a) Store, hold, or transport anhydrous ammonia in a container that does not meet all applicable requirements established by rules of the department promulgated under
sub. (2).
101.10(3)(b)
(b) Transfer or attempt to transfer anhydrous ammonia into a container that does not meet all applicable requirements established by rules of the department promulgated under
sub. (2).
101.10(3)(c)
(c) Transfer or attempt to transfer anhydrous ammonia without the consent of the owner of the anhydrous ammonia.
101.10(3)(d)
(d) Intentionally cause damage to anhydrous ammonia equipment without the consent of the owner of the anhydrous ammonia equipment.
101.10(3)(e)
(e) Intentionally take, carry away, use, conceal, or retain possession of anhydrous ammonia belonging to another or anhydrous ammonia equipment belonging to another, without the other's consent and with intent to deprive the owner permanently of possession of the anhydrous ammonia or anhydrous ammonia equipment.
101.10(3)(f)
(f) Intentionally release or allow the escape of anhydrous ammonia belonging to another into the atmosphere. This paragraph does not apply if the owner has authorized the actor to exercise control over the anhydrous ammonia or has consented to its release.
101.10(4)(a)(a) Any person who violates a rule of the department promulgated under
sub. (2) may be required to forfeit not less than $10 nor more than $100 for each violation.
101.10(4)(b)
(b) Except as provided in
par. (c), any person who violates
sub. (3) is guilty of a Class I felony. Notwithstanding
s. 101.02 (12), each act in violation of
sub. (3) constitutes a separate offense.
101.10(4)(c)
(c) Any person who violates
sub. (3) (a) or
(b) while performing an agricultural activity or while performing an activity related to the construction, repair, alteration, location, installation, inspection, or operation of anhydrous ammonia equipment with the consent of the owner of the anhydrous ammonia equipment may be required to forfeit not less than $10 nor more than $100 for each violation.
101.10 History
History: 2001 a. 3,
16,
73,
109;
2005 a. 14.
101.10 Cross-reference
Cross-reference: See also ch.
SPS 343, Wis. adm. code.
101.11
101.11
Employer's duty to furnish safe employment and place. 101.11(1)(1) Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.
101.11(2)(a)(a) No employer shall require, permit or suffer any employee to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide and use safety devices and safeguards, or fail to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no such employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health, safety or welfare of such employees and frequenters; and no employer or owner, or other person shall hereafter construct or occupy or maintain any place of employment, or public building, that is not safe, nor prepare plans which shall fail to provide for making the same safe.
101.11(2)(b)
(b) No employee shall remove, displace, damage, destroy or carry off any safety device or safeguard furnished and provided for use in any employment or place of employment, nor interfere in any way with the use thereof by any other person, nor shall any such employee interfere with the use of any method or process adopted for the protection of any employee in such employment or place of employment or frequenter of such place of employment, nor fail or neglect to do every other thing reasonably necessary to protect the life, health, safety or welfare of such employees or frequenters.
101.11(3)
(3) This section applies to community-based residential facilities as defined in
s. 50.01 (1g).
101.11 History
History: 1971 c. 185; Stats. 1971 s. 101.11;
1975 c. 413;
1987 a. 161 s.
13m.
101.11 Cross-reference
Cross-reference: See also chs.
SPS 361,
362,
363,
364, and
365, Wis. adm. code.
101.11 Annotation
Ordinary negligence can be compared with negligence founded upon the safe place statute. In making the comparison, a violation of the statute is not to be considered necessarily as contributing more than the common-law contributory negligence. Lovesee v. Allied Development Corp.
45 Wis. 2d 340,
173 N.W.2d 196 (1970).
101.11 Annotation
When an apartment complex was managed for a fee by a management company, the company was carrying on a business there. Reduction of rent to one of the tenants for caretaking services constituted employment on the premises. A tenant who fell on the icy parking lot after the caretaker knew of the condition need only prove negligence in maintaining the premises. Wittka v. Hartnell,
46 Wis. 2d 374,
175 N.W.2d 248 (1970).
101.11 Annotation
A public sidewalk is not made a place of employment merely because an employer constructed it and kept it free of ice and snow. Petroski v. Eaton Yale & Towne, Inc.
47 Wis. 2d 617,
178 N.W.2d 53 (1970).
