Title 803 KAR — Education and Labor Cabinet

Chapter 1 Labor Standards; Wages and Hours

803 KAR 1:026 Equal pay provisions, meaning and application {#sec-803-kar-1-026 omnilex-key=us-ky-regs-official--title-803--803 KAR 1:026}

Section 1. Definitions.

(1) "Employer" is defined by KRS 337.420(2).

(2) "Establishment" means a distinct physical place of business_that is physically separate from other places of business.

(3) "Wage rate" is defined by KRS 337.420(3).

Section 2. Application of Provisions in General.

(1) Application to employers. The prohibition against discrimination in wages on the basis of sex contained in KRS 337.423 shall apply to every employer within the state.

(2) Application to establishments.

(a) The prohibition against discrimination in wages on the basis of sex shall apply within the same establishment.

(b) If an employer has more than one (1) establishment in which he or she employs employees, there shall not be any comparison between wages paid to employees in different establishments.

(3) A wage rate shall encompass all payments made to or on behalf of the employee as remuneration for employment, including fringe benefits, such as:

(a)

1. Vacation and holiday pay;

2. Premium payments for work on Saturdays, Sundays, holidays, or regular days of rest; and

3. Pension benefits, insurance benefits, and other fringe benefits paid as compensation for employment.

(b) Payments made by an employer to an employee that do not constitute compensation for employment, such as payments related to maternity and reasonable payments for reimbursable expenses of traveling on the employer's business, shall not constitute wages to be compared for equal pay purposes.

Section 3. Male Jobs and Female Jobs.

(1) If an employee of one (1) sex is hired or assigned to a particular job to replace an employee of the opposite sex, comparison of the newly assigned employee's wage rate with that of the replaced former employee shall be required, whether or not the job is performed concurrently by employees of both sexes.

(2) A prohibited sex-based wage differential shall exist if all employees of one (1) sex are removed from a particular job by transfer or discharge so as to retain employees of only one (1) sex in a job previously performed interchangeably or concurrently by employees of both sexes.

(a) The employer's obligation to pay the higher rate for the job shall not be avoided or evaded by confining the job to members of the lower paid sex.

(b) The employer shall increase the wage rate to the higher rate paid for the job when performed by employees of the opposite sex.

Section 4. Inequalities in Pay.

(1) Inequalities in pay between employees of the opposite sexes that may be a violation of KRS 337.423 shall include the following situations:

(a) The employee:

1. Occupies a job that purportedly requires a higher degree of skill, effort, or responsibility; and

2. Receives the lower wage rate;

(b) Employees of only one (1) sex are concentrated in the lower grades of the wage scale, and there is no material relationship other than sex between the lower wage rates paid to the employees and the higher rates paid to employees of the opposite sex; or

(c)

1. A particular establishment tends to pay for the same work:

a. All persons of one (1) sex at the lowest rate of the range; and

b. Employees of the opposite sex at the highest rate of the range; and

2. No specific factor or factors other than sex are associated with the difference in pay.

(2) Differentials in entrance rates shall not constitute a violation of KRS 337.423 if the factors taken into consideration in determining which rate is to be paid each employee are applied equally to men and women.

Section 5. Equality and Inequality of Pay in Particular Situations.

(1) Overtime work. Overtime premiums shall be a part of wages for purposes of KRS 337.423.

(a) It shall not be a prohibited wage rate differential if:

1. Male and female employees perform comparable work during regular hours, but:

a. Employees of only one (1) sex continue working overtime into another work period; and

b. Work performed during this later period is compensated at a higher rate, if it is required by law or is the customary practice of the employer; or

2. Male and female employees are performing equal work in an establishment during regular hours, but:

a. Only some of these employees continue working into an overtime period; and

b. Payment of a higher wage rate is paid for the overtime, if employees, whether male or female, are paid for the actual overtime hours worked.

(b) A prohibited wage rate differential shall occur if men and women receive the same straight-time rates for work subject to the equal pay standards, but:

1. Employees of one (1) sex receive an overtime premium rate of twice the straight-time rate; and

2. Employees of the opposite sex receive only one and one-half (1 1/2) times the straight-time rate for overtime.

(2) Special assignments. If an employee is required to perform an additional task outside regular working hours, it shall not justify payment of a higher wage rate to that employee for all hours worked. Employees who are assigned a different and unrelated task to be performed outside the regular workday may be paid at a different rate of pay for the time spent in performing this additional duty if the rate is commensurate with the task performed.

(3) Vacation or holiday pay. Vacation or holiday pay shall be considered as remuneration for employment included in wages. A wage rate differential shall occur if:

(a) Employees of one (1) sex receive vacation pay for a greater number of hours than employees of the opposite sex;

(b) The work is subject to KRS 337.423; and

(c) There is no specified exception to the wage rate differential pursuant to KRS 337. 423(1).

(4) Contributions to employee benefit plans.

(a) If employer contributions to a plan providing insurance or similar benefits to employees are equal for both men and women, a wage differential prohibited by KRS 337.423 shall not result from these payments, even though the benefits that accrue to the employees are greater for one (1) sex than for the other.

(b) The fact that an employer making unequal contributions for employees of opposite sexes in the situation described in paragraph (a) of this subsection shall not be considered a wage rate differential prohibited by KRS 337.423, if the resulting benefits are equal for the employees.

(5) Commissions. The establishment of different rates of commission for different types of merchandise shall not be a violation of the equal pay provisions if the factor of sex provides no part of the basis for the differential.

(6) Head of household. Head of household status shall not bear any relationship to the requirements of the job or to an employee's performance on the job. If a differential in pay exists because an employee of one (1) sex is head of a household and the other employee of the opposite sex is not, the differential shall be considered to be based on the factor of sex.

Section 6. The Equal Pay for Equal Work Standard; Generally.

(1) In accordance with KRS 337.423, an employer shall be prohibited from paying employees of one (1) sex wages at rates lower than employees of the opposite sex for comparable work on jobs with comparable skills, efforts, and responsibilities required for performance. Application of the equal pay standard:

(a) Shall not be dependent on job classifications or titles.

(b) Shall be dependent on actual job requirements and performance.

(2) In accordance with KRS 337.423, jobs with comparable requirements shall be compared in applying the equal pay for equal work standard.

(a) Jobs that require comparable skill, effort, and responsibility in their performance shall not be required to be identical in every respect. Jobs shall be scrutinized as a whole and over a full work cycle.

(b) Inconsequential differences in job content shall not be a valid excuse for payment of a lower wage to an employee of one (1) sex than to an employee of the opposite sex, if the two (2) employees are performing comparable work on essentially the same jobs in the same establishment.

(c) In determining whether job differences are so substantial as to make jobs unequal, whether and to what extent significance has been given to these differences in setting the wage levels for the jobs shall be considered.

(d) In determining whether differences in job content are substantial in order to establish whether or not employees are performing comparable work, the amounts of time that employees spend in the performance of different duties shall not be the sole criteria.

(3) In order for the equal pay standard to apply, an analysis of the following shall be conducted:

(a) Comparable skill in performance.

1. Skill shall:

a. Include factors, such as experience, training, education, and ability; and

b. Be measured in terms of the performance requirements of the job.

2. If employees are required to have the same skill in order to perform either of two (2) jobs, the jobs shall require comparable skill, even if the employee in one (1) of the jobs does not exercise the required skill as frequently or during as much of the working time as the employee in the other job. Possession of a skill not needed to meet requirements of the job shall not be considered in making a determination regarding comparability of skill.

3. The efficiency of the employee's performance in the job shall not be considered in evaluating skill.

(b) Comparable effort in performance.

1. Effort requires measurement of the physical or mental exertion needed for the performance of a job.

2. Jobs may require comparable effort in their performance even though the effort may be exerted in different ways on the two (2) jobs. Differences only in the kind of effort required to be expended in this situation shall not justify wage differentials.

3. The occasional or sporadic performance of an activity that may require extra physical or mental exertion shall not alone be sufficient to justify a finding of unequal effort.

4. A wage rate differential based on differences in the degree or amount of effort required for performance of jobs shall be applied uniformly to men and women.

(c) Comparable responsibility.

1. Responsibility shall be the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation. Differences in the degree of responsibility required in the performance of otherwise comparable jobs shall cover a wide variety of situations.

2. If one (1) employee of a group performing jobs that are comparable in other respects, is required from time to time to assume supervisory duties for reasons such as the absence of the regular supervisor, payment of a higher rate to the employee may be based on the additional responsibility required to perform the job.

Section 7. Exceptions to Equal Pay Standards.

(1) In accordance with KRS 337.423(1), the following differentials shall be exceptions to the standard requiring that employees doing comparable work be paid equal wages, regardless of sex. Differentials paid pursuant to an established:

(a) Seniority system; or

(b) Merit increase system.

(2) If an employer relies on the excepting language to exempt a differential in pay from the operation of the equal pay provisions, the employer shall be required to demonstrate that the wage rate differential is based on a factor other than sex if it appears that the payments are for jobs requiring comparable skill, effort, and responsibility.

(3) A showing that a wage differential is based on a factor other than sex, so as to be exempt from the KRS 337.423, shall be incomplete without a showing that there is a reasonable relationship between the amount of the differential and the weight properly attributable to the factor other than sex. If male employees who work forty (40) hours each week and female employees who work thirty-five (35) hours each week are performing comparable work on jobs; the job performance requires comparable skill, effort, and responsibility; and the employees are paid weekly salaries for this work, a differential in the amounts may be justified based on a difference in hours of work. If the difference in salaries paid is too great to be accounted for by the difference in hours of work, then it shall be necessary to show some factor, other than sex, as the basis for the unexplained portion of the wage differential.

(4) Application of exceptions.

(a) Shift differentials, incentive payments, production bonuses, performance and longevity raises, and similar payments shall not result in equal pay violations if applied without distinction to employees of both sexes.

(b) "Red circle" rates. The term "red circle" rate shall mean certain unusual, higher than normal wage rates that are maintained for various reasons.

1. If an employer wishes to transfer a long-service employee, who can no longer perform their regular job because of ill health, to different work that is now being performed by employees of the opposite sex, this may result in a red circle rate. Under the "red circle" principle, the employer may continue to pay the employee his or her present salary, which is greater than that paid to the employees of the opposite sex, for the work both will be doing. Maintaining an employee's established wage rate despite a reassignment to a less demanding job shall be a valid reason for the differential, even if other employees performing the less demanding work would be paid at a lower rate because the differential is based on a factor other than sex.

2. If wage rate differentials have been or are being paid on the basis of sex to employees performing comparable work, rates of the higher paid employees shall not be "red circled".

(c) Temporary reassignments.

1. An employer may require an employee, for a short period, to perform the work of a job classification other than the employee's regular classification. If the employee's rate for the regular job is higher than the rate usually paid for the work to which the employee is temporarily reassigned, the employer may continue to pay the employee the higher rate under the "red circle" principle.

2. An employee may be required, during the period of temporary reassignment, to perform work for which employees of the opposite sex are paid a higher wage rate than that paid for the duties of the employee's regular job classification. The employer may continue to pay the reassigned employee at the lower rate, if the rate is not based on quality or quantity of production, and if the reassignment is temporary.

3. If a piece rate is paid to employees of the opposite sex who perform the work to which the employee in question is reassigned, failure to pay that employee the same piece rate paid to the other employees shall constitute discrimination on the basis of sex.

4. Failure to pay the higher rate to the reassigned employee after it becomes known that the reassignment will not be temporary shall be an indication that sex, rather than the temporary nature of the assignment, is the real basis for the wage differential. Failure to pay the higher rate for a period longer than one (1) month shall raise questions as to whether the reassignment was, in fact, intended to be temporary.

(d) Training programs. Employees employed under a bona fide training program may, in the furtherance of their training, be assigned from time to time to various types of work in the establishment. The employee in training status may be performing comparable work with nontrainees of the opposite sex whose wage rates may be unequal to those of the trainee. If the rate paid to the employee in training status is paid, regardless of sex, under the training program, the differential may be considered to be attributable to a factor other than sex, and a violation of the equal pay standard shall not result.

(e) Temporary and part-time employees.

1. The payment of different wage rates to permanent employees, as compared with temporary employees that may be hired during the holiday season, shall not be a violation of the equal pay provisions, even if comparable work is performed by both groups of workers.

2. The payment of a different wage to employees who work only a few hours a day, as compared with employees of the opposite sex who work a full day, shall not be a violation of the equal pay provisions, even if both groups of workers are performing comparable work in the same establishment.

History

• RELATES TO: KRS 337.420-337.433
• STATUTORY AUTHORITY: KRS 337.420(3), 337.425(4)
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 337.425 authorizes the Commissioner of the Department of Workplace Standards to promulgate administrative regulations necessary or appropriate to carry out the provisions of KRS 337.420 to 337.433. This administrative regulation establishes requirements relating to application of the equal pay provisions set forth in KRS 337.420 to 337.433.
• History: 48 Ky.R. 2328, 2974; eff. 8-30-2022.

803 KAR 1:035 Hearing procedure {#sec-803-kar-1-035 omnilex-key=us-ky-regs-official--title-803--803 KAR 1:035}

Section 1. Procedure.

(1) The Commissioner of Workplace Standards, or his authorized agent, shall investigate any complaint or routinely inspect records relating to an alleged violation of KRS 337.020 to 337.405.

(2)

(a) The commissioner, or his authorized agent, shall evaluate all proof submitted and render tentative findings of fact if:

a. A settlement cannot be reached between the employer and employee; and

b. An investigation reveals that questions of fact are in issue; or

2. The complaint or routine inspection gives the Commissioner of Workplace Standards, or his authorized agent, good cause to believe that factual issues need to be resolved.

(b) The proof to be evaluated by the commissioner, or his authorized agent, shall include:

1. The findings of the investigator;

2. Sworn affidavits;

3. Contractual agreements;

4. Payroll records; and

5. Other evidence relating to an alleged violation of KRS 337.020 to 337.405.

(c) The commissioner shall cause the tentative findings of fact to be served upon the parties.

(d)

1. Service shall be accomplished by mailing a copy of the tentative findings of fact to the party's registered agent for service of process via certified mail.

2. If the party does not have a registered agent for service of process, service of the tentative findings shall be accomplished by certified mail to the party's last known physical address or by personal service.

(3)

(a) The party suffering adversely from these tentative findings of facts shall have fifteen (15) days from receipt of service of the findings to submit a petition for a fact-finding hearing to the commissioner.

(b) The petition shall contain:

1. A brief statement of the petitioner's grounds for believing the tentative findings of fact to be in error; and

2. Any affirmative defense to the findings.

(c) Failure to state the grounds or defenses shall be cause for the commissioner, or his authorized agent, to deny the petitioner a hearing.

(d) If commissioner, or his authorized agent, approves the hearing petition, then a hearing date shall be set in order to make final findings of fact concerning the alleged statutory violation.

(e) The parties shall be notified of the hearing date in accordance with KRS 13B.050.

(f) If a petition for a fact-finding hearing is not sought or granted, then the tentative findings of fact shall become a final order fifteen (15) days after receipt of service of the tentative order.

(4) The commissioner, or his authorized agent, shall conduct the hearing:

(a) In the Frankfort office of the Education and Labor Cabinet; or

(b) At a site in the Commonwealth mutually agreed upon by all the parties and the commissioner, or his authorized agent.

(5) In accordance with KRS 337.310, the hearings shall comply with KRS Chapter 13B.

(6) The commissioner, or his authorized agent, shall follow the provisions of KRS 13B.120 in making a decision concerning a final order.

History

• RELATES TO: KRS 13B, 337.295, 337.310
• STATUTORY AUTHORITY: KRS 13B.170, 337.295, 337.310
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 13B.170 authorizes an agency to promulgate administrative regulations that are necessary to carry out the provisions of KRS Chapter 13B, regarding administrative hearings. KRS 337.310 authorizes appeal of orders and decisions issued or made by the Commissioner of Workplace Standards, Education and Labor Cabinet under KRS 337.020 to 337.405. KRS 337.295 authorizes the commissioner to promulgate administrative regulations pertaining to these statutes. This administrative regulation establishes the procedure to be followed by the Commissioner of Workplace Standards in deciding the questions of fact as required by the statute and to ensure that the parties to proceedings concerning alleged violations of the statutes are afforded a fair opportunity to present any and all relevant proof on the matter.
• History: 4 Ky.R. 219; eff. 1-4-78; 5 Ky.R. 143; eff. 10-4-78; 6 Ky.R. 693; 7 Ky.R. 299; eff. 9-3-80; 21 Ky.R. 568; 1051; eff. 10-10-94; TAm eff. 8-9-2007; 41 Ky.R. 2045; 2550; eff. 7-6-2015; Cert. eff. 6-13-2022; TAm eff. 11-10-2022.

803 KAR 1:061 Overtime pay requirements {#sec-803-kar-1-061 omnilex-key=us-ky-regs-official--title-803--803 KAR 1:061}

Section 1. Definitions.

(1) "Profit-sharing plan" means any person or arrangement that provides for the distribution by the employer to the employees of employees' respective shares of profits.

(2) "Profit-sharing trust" means any program or arrangement that provides for the irrevocable deposit by the employer of the employee's distributive shares of profits with a trustee for deferred distribution to the employees of employees' respective shares.

Section 2. Application of Overtime Provisions Generally.

(1) Because there is not an absolute limitation in KRS 337.285 regarding the number of hours that an employee may work in any workweek, the employee may work as many hours a week as the employee and employer determined, if the required overtime compensation is paid to the employee for hours worked in excess of forty (40) hours as established in KRS 337.285.

(2) In accordance with KRS 337.285, an employer shall not be required to pay an employee overtime compensation for hours in excess of eight (8) per day or for work on Saturdays, Sundays, holidays, or regular days of rest.

(3) If more than forty (40) hours are not actually worked in the workweek, overtime compensation pursuant to KRS 337.285 need not be paid.

(4) KRS 337.285 shall not relieve an employer of an obligation the employer may have assumed by agreement or of any obligation imposed by other state or federal laws to limit overtime hours of work or to pay premium rates for work in excess of a daily standard or for work on Saturdays, Sundays, holidays, or other periods outside of or in excess of the normal or regular workweek or work day.

Section 3. The Workweek as the Basis for Applying KRS 337.285. If in any workweek KRS 337.285 applies and an employee or employer is not exempt from overtime pay requirements, the employer shall total all the hours worked by the employee in that workweek and pay overtime compensation for each hour worked in excess of forty (40) hours.

Section 4. Each Workweek Stands Alone.

(1) In accordance with KRS 337.285, in a single workweek an employer shall not average hours over two (2) or more weeks. If an employee works thirty (30) hours one (1) week and fifty (50) hours the next, the employee shall receive overtime compensation for the overtime hours worked beyond the applicable maximum in the second week, even if the average number of hours worked in the two (2) weeks is forty (40).

(2) This section shall apply regardless of whether the employee works on a standard or swing-shift schedule and regardless of whether the employee is paid on a daily, weekly, biweekly, monthly, or other basis.

(3) This section shall apply to pieceworkers and employees paid on a commission basis. For pieceworkers and commission workers, the hours worked and the compensation earned shall be determined on a workweek basis.

Section 5. Determining the Workweek.

(1) An employee's workweek shall be based on a fixed and regularly recurring period of 168 hours, seven (7) consecutive twenty-four (24) hour periods, which need not coincide with the calendar week but may begin on any day and at any hour of the day.

(2) For purposes of computing pay in accordance with KRS 337.285, a single workweek may be established for a plant or other establishment as a whole or different workweeks may be established for different employees or groups of employees.

(3) Once the beginning time of an employee's workweek basis is established, it shall remain fixed regardless of the schedule of hours worked.

(a) The beginning of the workweek may be changed if the change is intended to be static and not designed to evade overtime requirements.

(b) The proper method of computing overtime pay in a period in which a change in the time of commencement of the workweek is made shall be accomplished as established in Section 13 of this administrative regulation.

Section 6. General Standard for Overtime Pay. The general overtime pay standard in KRS 337.285 requires that overtime shall be compensated at a rate not less than one and one-half (1 1/2) times the hourly rate at which the employee is employed but shall not be less than the statutory minimum. If the employee's hourly rate of pay is higher than the statutory minimum, the overtime compensation shall be computed at a rate not less than one and one-half (1 1/2) time the higher rate.

Section 7. Overtime compensation shall be at an hourly rate in accordance with KRS 337.285, which is based on the rate per hour.

(1) An employer shall not be required to compensate employees on an hourly rate basis. Employee earnings may be determined on a piece-rate, salary, commission, or other basis, but the overtime compensation due to employees shall be computed on the basis of the hourly rate calculated based on earnings computed at the hourly rate of employees during each workweek.

(2) The hourly rate of pay of an employee shall be determined by dividing the total remuneration for employment in any workweek by the total number of hours worked by the employee in that workweek for which the compensation was paid.

Section 8.

(1) Hour Rate Employee. Overtime pay criteria for hourly rate employees shall be as established in 29 C.F.R. 778.110.

(2) Pieceworker. If an employee is employed on a piece-rate basis, the hourly rate of pay shall be computed by adding together total earnings for the workweek from piece rate and all other sources and dividing that sum by the number of hours worked in the week for which compensation was paid. For the overtime work the pieceworker is entitled to be paid, in addition to the total weekly earnings at this hourly rate for all hours worked, a sum equivalent to one-half (1/2) this rate of pay multiplied by the number of hours worked in excess of forty (40) in the week.

(3) Day rates and job rates. The overtime pay criteria for day rates and job rates shall be as established in 29 C.F.R. 778.112.

(4) Salaried employee. The overtime pay criteria for salaried employees shall be as established in 29 C.F.R. 778.113 and 778.114.

(5) Employees working two (2) or more rates. If an employee in a single workweek works at two (2) or more different types of work for which different nonovertime rates of pay have been established, the hourly rate for that week shall be the weighted average of the rates. The total earnings shall be computed to include compensation during the workweek from all the rates and shall then be divided by the total number of hours worked at all jobs.

(6) Payments other than cash. The overtime pay criteria for payments other than cash shall be as established in 29 C.F.R. 778.116.

(7) Commission payments. The overtime pay criteria for commission payments shall be as established in 29 C.F.R. 778.117 through 778.121.

(8) Other methods of determining the regular hourly rate shall be allowed if the method:

(a) Provides for each employee employed by an employer to be paid a rate of not less than one and one-half (1 1/2) times the hourly rate at which the employee is employed; and

(b) Is not being used as an attempt to evade the provisions of KRS 337.285.

Section 9. Payments Excluded from Computing Hourly Rate. As used in KRS 337.285, the "hourly rate at which he is employed" shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include:

(1) Sums paid as gifts. Payments in the nature of gifts made at holiday times or on other special occasions as a reward for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency. The sums shall not be credited toward overtime compensation due.

(a) To qualify for this exclusion, the bonus shall be actually a gift or in the nature of a gift.

(b) If it is measured by hours worked, production, or efficiency, the payment shall be considered geared towards wages and hours during the bonus period and shall not be considered in the nature of a gift.

(c) If the payment is so substantial that the payment can be assumed that employees consider it a part of the wages for which employees work, the bonus shall not be considered to be in the nature of a gift.

(d) If the bonus is paid pursuant to contract, the bonus shall not be in the nature of a gift;

(2)

(a)

1. Payments made for an occasional period during which time worked is not being performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause;

2. Reasonable payments for traveling expenses or other expenses incurred by an employee in the furtherance of the employer's interests and properly reimbursable by the employer; and

3. Other similar payments to an employee that are not made as compensation for the employee's hours worked in any workweek.

(b) No part of the payments shall be credited toward overtime compensation due pursuant to KRS 337.285;

(3) Sums paid in recognition of services performed during a given period if:

(a) Both the fact that payment is to be made and the amount of the payment shall be determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement, or promise causing the employee to expect the payments regularly; or

(b) The payments are made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift or savings plan.

1. The sums shall not be credited toward overtime compensation due pursuant to KRS 337.285.

2. In order for a bonus to qualify for exclusion as a discretionary bonus, the employer shall retain discretion both as to the fact of payment and as to the amount until a time quite close to the end of the period for which the bonus is paid.

3. The sum to be paid as a bonus shall be determined by the employer without prior promise or agreement.

4. The employee shall not have a contract right, express or implied, to any amount.

5. If the employer promises in advance to pay a bonus, the employer shall have waived discretion with regard to it;

(4) Contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for avoiding old-age, retirement, life, accident, health insurance, or similar benefits for employees. The sums shall not be credited toward overtime compensation pursuant to KRS 337.285;

(5) Extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because the hours are hours worked in excess of eight (8) in a day or in excess of the maximum workweek applicable to the employee's normal working hours. Extra compensation paid for these hours shall be creditable toward overtime compensation pursuant to KRS 337.285;

(6) Extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, regular days of rest, or in the sixth or seventh day of the workweek, in which the premium rate is not less than one and one-half (1 1/2) times the rate established in good faith for like work performed in nonovertime hours on other days. Extra compensation paid for these shall be creditable toward overtime compensation pursuant to KRS 337.285; or

(7) Extra compensation provided by a premium rate period to the employee, in pursuance of an applicable employment contract or collective bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal, or regular workday, in which the premium rate is not less than one and one-half (1 1/2) times the rate established in good faith by the contract or agreement for similar work performed during the workday or workweek. Extra compensation paid for these hours shall be creditable toward overtime compensation pursuant to KRS 337.285.

Section 10. Requirements of A bona fide "Profit-sharing Plan or Trust."

(1) A bona fide profit-sharing plan or trust shall comply with paragraphs (a) through (f) of this subsection.

(a) The profit-sharing plan or trust shall constitute a definite program or arrangement in writing, communicated or made available to the employees, which shall be established and maintained in good faith for the purpose of distributing to the employees a share of profits as additional remuneration over and above the wages or salaries paid to employees, which wages or salaries shall not be dependent upon or influenced by the existence of the profit-sharing plan or trust or the amount of the payments made pursuant thereto.

(b) All contributions or allocations by the employer in the fund to be distributed to the employees shall be:

1. Derived solely from profits of the employer's business as a whole or an established branch or division of the business recognized for general business purposes and for which profits shall be separately and regularly calculated in accordance with accepted accounting practice; and

2. Made periodically, but not more frequently than is customary or consonant with accepted accounting practice to make periodic determinations of profit.

(c) Eligibility to share in profits shall extend to at least all employees who are subject to the minimum wage and overtime provisions of KRS 337.285, or to all employees in an established part of the employer's business as established in paragraph (b) of this subsection if eligibility can be determined factors such as length of service or minimum schedule of hours or days of work, which are established in the plan or trust and that eligibility need not extend to officers of the employer.

(d) The amounts paid to individual employees shall be determined in accordance with a definite formula or method of calculation established in the plan or trust. The formula or method of calculation shall be based on factors such as straight-time earnings, total earnings, base rate of pay of the employee, straight-time hours or total hours worked by employers, length of service, or distribution on a per capita basis.

(e) An employee's total share determined in accordance with paragraph (d) of this subsection shall not be diminished because of any other remuneration received by the employee.

(f) Provision shall be made either for payment to the individual employees of employees' respective shares of profits after the determination of the amount of profits to be distributed, or for the irrevocable deposit by the employer of the employee's distributive shares of profits with a trustee for deferred distribution to the employees of employees' respective shares after a stated period of time or upon the occurrence of appropriate contingencies established in the plan or trust. The right of an employee to receive his or her share shall not be dependent upon continuing in the employ of the employer after the period for which the determination of profits has been made.

(2) A plan or trust that contains any of the following provisions shall not be deemed to meet the requirements of a bona fide profit-sharing or trust:

(a) The share of any individual employee is determined in substance on the basis of attendance, quality or quantity of work, rate of production, or efficiency;

(b) The amount to be paid periodically by the employer into the fund or trust to be distributed to the employees is a fixed sum;

(c) Periodic payments of minimum amounts to the employees are guaranteed by the employer; or

(d) Any individual employee's share, by the terms of the plan or trust to be distributed to the employees shall be based on factors other than profits, such as hours of work, production, efficiency, sales, or savings in cost.

Section 11. Requirements of A bona fide Thrift or Savings Plan.

(1) A bona fide thrift or savings plan shall meet all of the standards established in paragraphs (a) through (e) of this subsection.

(a) The thrift or savings plan shall constitute a definite program or arrangement if the plan is in writing; adopted by the employer or by contract as a result of collective bargaining and communicated, or made available to the employees; and established and maintained, in good faith; for the purpose of encouraging voluntary thrift or savings by employees by providing an incentive to employees to accumulate regularly and retain cash savings through the regular purchase of public or private securities.

(b) The plan shall establish the category or categories of employees participating and the basis of the employee's' eligibility. Eligibility shall not be based on factors such as work, production, or efficiency of the employees. Hours of work may be used to determine eligibility of part-time or casual employees.

(c) The amount any employee could save under the plan shall be stated in the plan or determined in accordance with a definite formula established in the plan. The formula shall be based on actors such as the straight-time earnings or total earnings, base rate of pay, or length of service of the employee.

(d)

1. The employer's total contribution in any year shall not exceed fifteen (15) percent of the participating employees' total earnings during the year; and

2. The employer's total contribution in any year shall not exceed the total amount saved or invested by the participating employees during that year.

(e) The employer's contributions shall be apportioned among the individual employees in accordance with a definite formula or method of calculation established in the plan. The formula or method of calculation shall be based on the amount saved or length of time the individual employee retains savings or investment in the plan if the employee's share is not determined because of any other remuneration received by the employee.

(2) An employee's participation shall be on a voluntary basis.

(3) An employee's wages or salary shall not be dependent upon or influenced by the existence of the thrift or savings plan or the employer's contributions to the plan.

(4) The amounts any employee may save under the plan, or the amounts paid by the employer under the plan shall not be based upon the employee's hours of work, production, or efficiency.

Section 12. Conditions for Exclusion of Benefit-plan Contributions under Section 9(4) of this Administrative Regulation. The criteria for the exclusion of benefit-plan contributions under Section 8(4) of this administrative regulation shall be as established in 29 C.F.R. 778.215.

Section 13. Overlapping If Change of Workweek is Made.

(1) As established in Section 5 of this administrative regulation, the beginning of the workweek may be changed for an employee or for a group of employees if the change is intended to be permanent and is not designed to evade the overtime requirements of KRS 337.285.

(a) A change in the workweek necessarily results in a situation in which one (1) or more hours or days fall in both the old workweek as previously constituted and the new workweek.

(b) If the workweek in a plant commenced at 7 a.m. on Monday and it is now proposed to being the workweek at 7 a.m. on Sunday, the hours worked from 7 a.m. Sunday to 7 a.m. Monday shall constitute both the last hours of the old workweek and the first hours of the newly established workweek.

(2) The criteria for the computation of overtime due for overlapping workweeks shall be as established in 29 C.F.R. 778.301 and 778.302(a) and (b).

History

• RELATES TO: KRS 337.285, 29 C.F.R. 778.110, 778.112, 778.113, 778.114, 778.116, 778.117 – 778.121, 778.215, 778.301, 778.302(a), (b)
• STATUTORY AUTHORITY: KRS 337.285, 337.295
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 337.285 requires overtime pay standards. KRS 337.295 authorizes the commissioner to promulgate administrative regulations. This administrative regulation establishes standards of the Department of Workplace Standards, Education and Labor Cabinet, with respect to overtime pay requirements established in KRS 337.285.
• History: 48 Ky.R. 2331, 3737, 2977; eff. 8-30-2022; TAm eff. 11-10-2022.

803 KAR 1:064 Trading time {#sec-803-kar-1-064 omnilex-key=us-ky-regs-official--title-803--803 KAR 1:064}

Section 1. Definition. "Trading time" means the practice of employees engaged in fire protection activities and employees of carrier by air subject to 45 U.S.C. 181 substituting for one another on regularly scheduled tours of duty, or for some part thereof, in order to allow an employee to be absent from work for personal matters.

Section 2. The practice of "trading time" shall not affect hours of work if:

(1) The trading of time is done voluntarily by the employees participating in the program and not at the request of the employer;

(2) The reason for trading time is due to the employee's desire or need to attend to personal matters and not to the employer's business operations; and

(3) A record is maintained by the employer of all time traded by employees.

History

• RELATES TO: KRS 337.275, 337.285, 45 U.S.C. 181
• STATUTORY AUTHORITY: KRS 337.295
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 337.295 authorizes the commissioner to promulgate administrative regulations for special items usual in a particular employer-employee relationship. This administrative regulation establishes the criteria to be met by public employers who wish to allow employees engaged in fire protection activities and any employee of a carrier by air subject to the provisions of 45 U.S.C. 181 to use the practice of "trading time."
• History: 48 Ky.R. 2335, 2980; eff. 8-30-2022.

803 KAR 1:067 Hours worked {#sec-803-kar-1-067 omnilex-key=us-ky-regs-official--title-803--803 KAR 1:067}

Section 1. Definition. "Employee" is defined by KRS 337.010(1)(e) and (2)(a).

Section 2. Employees Suffered or Permitted to Work. The criteria for "suffered or permitted to work" applicable to KRS 337.275 and 337.285 shall be as established in 29 C.F.R. 785.11 through 785.13.

Section 3. Waiting Time. The criteria for "waiting time" applicable to KRS 337.275 and 337.285 shall be as established in 29 C.F.R. 785.14 through 785.17.

Section 4. Rest and Meal Periods. The criteria for rest and meal periods applicable to KRS 337.275 and 337.285 shall be as established in 29 C.F.R. 785.18 and 785.19.

Section 5. Sleeping Time and Certain Other Activities. The requirements for sleeping time and certain other activities applicable to KRS 337.275 and 337.285 shall be as established in 29 C.F.R. 785.20, 785.21, and 785.23.

Section 6. Lectures, Meetings, and Training Programs. The requirements for lectures, meetings, and training programs applicable to KRS 337.275 and 337.285 shall be as established in 29 C.F.R. 785.27 through 785.32.

Section 7. Travel Time. The requirements for travel time applicable to KRS 337.275 and 337.285 shall be as established in 29 C.F.R. 785.33, 785.35, 785.38, and 785.39.

Section 8. Recording Work Time.

(1) In accordance with KRS 337.320, there is no particular method of keeping a time record worked by an employee. Recordkeeping requirements shall be as established in 803 KAR 1:068.

(2) Criteria for the use of time clocks applicable to KRS 337.275 and 337.285 shall be as established in 29 C.F.R. 785.48.

History

• RELATES TO: KRS 337.275, 337.285, 29 C.F.R. 785.11 – 785.21, 785.23, 785.27 – 785.33, 785.35, 785.38, 785.39, 785.48
• STATUTORY AUTHORITY: KRS 337.295
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 337.295 authorizes the commissioner to promulgate administrative regulations to carry out the provisions of KRS 337.275 through 337.325, 337.345 and 337.385 through 337.405. This administrative regulation establishes the principals involved in determining what constitutes working time pursuant to KRS 337.275 and 337.285.
• History: 48 Ky.R. 2336, 2980; eff. 8-30-2022.

803 KAR 1:068 Recordkeeping requirements {#sec-803-kar-1-068 omnilex-key=us-ky-regs-official--title-803--803 KAR 1:068}

Section 1. Definition. "Workday" means any consecutive twenty-four (24) hours.

Section 2. Each employer shall keep the records required by this administrative regulation safe and accessible at the place or places of employment, or at one (1) or more established central recordkeeping offices where the records shall be maintained. If the records are maintained at a central recordkeeping office, other than in the place or places of employment, the records shall be made available within seventy-two (72) hours following notice from the commissioner or the commissioner's authorized representative.

Section 3. Each employer shall maintain and preserve payroll or other records containing the following information and data for employees subject to KRS Chapter 337:

(1) Name in full, and on the same record, the employee's identifying symbol or number if used in place of name on any time, work, or payroll records;

(2) Social Security number;

(3) Home address, including zip code;

(4) Date of birth, if under eighteen (18);

(5) Gender and occupation in which employed;

(6) Time of day and day of week on which the employee's workweek begins.

(a) Except as established in paragraph (b) of this subsection, if the employee is part of a work force or employed in or by an employer all of whose workers have a workweek beginning at the same time on the same day, a single notation of the time of the day and beginning day of the workweek for the whole work force shall suffice.

(b) If an employee or group of employees has a workweek beginning and ending at a different time, a separate notation shall be kept for that employee or group of employees;

(7) Hours worked each workday and each workweek;

(8) Regular rate of pay and total straight-time earnings or wages for all hours worked during the workweek;

(9) Total overtime compensation for the workweek;

(10) Total additions to or deductions from wages paid each pay period. Each employer making additions to or deductions from wages shall also maintain, in individual employee accounts, a record of the dates, amounts, and nature of the items that comprise the total addition and deductions; and

(11) Total wages paid each pay period and date of payment.

Section 4. Employers who make retroactive payment of wages or compensation due under KRS 337.275 and 337.285 shall:

(1) Prepare a report of each payment showing the amount of payment to each employee, the period covered by the payment, and the date of payment;

(2) File the original report, which shall evidence payment by the employer and receipt by the employee, with the commissioner or the commissioner's authorized representative within ten (10) days after payment is made;

(3) Deliver a copy of the report to the employee; and

(4) Preserve a copy of the report as part of the employee's records for at least one (1) year after date of entry.

History

• RELATES TO: KRS 337.275, 337.285
• STATUTORY AUTHORITY: KRS 337.295, 337.320
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 337.320 requires employers to keep records of hours of work and wages paid to employees subject to the provisions of KRS Chapter 337 for at least one (1) year after date of entry and authorizes the commissioner determine what information is required. This administrative regulation establishes recordkeeping requirements for employers subject to KRS Chapter 337.
• History: 48 Ky.R. 2337, 2980; eff. 8-30-2022.

803 KAR 1:071 Executive, administrative, supervisory, or professional employees; salesmen {#sec-803-kar-1-071 omnilex-key=us-ky-regs-official--title-803--803 KAR 1:071}

Section 1. Scope.

(1) The exemptions established in KRS 337.010(2)(a) shall not apply to workers as established in 29 C.F.R. 541.3(a).

(2)

(a) The exemptions established in KRS 337.010(2)(a) shall not apply to workers as established in 29 C.F.R. 541.3(b)(1).

(b) The exempted employees established in paragraphs (a) this subsection shall not qualify as exempt employees for reasons established in 29 C.F.R. 541.3(b)(2) through 541.3(b)(4).

Section 2. Executive Employees.

(1) The term, "individual employed in a bona fide executive capacity" in KRS 337.010(2)(a)2 shall include employees:

(a) Compensated on a salary basis at a rate of not less than $684 per week, exclusive of board, lodging, or other facilities; and

(b) Who meet the criteria as established in 29 C.F.R. 541.100(a)(2) through 541.100(a)(4) and 541.101.

(2) An "employee" employed in a bona fide executive capacity, as established by KRS 337.010(2)(a)2., shall also include an employee who owns at least a bona fide twenty (20) percent equity interest in the enterprise in which the employee is employed, regardless of whether the business is a corporation or other type of organization, and who is actively engaged in its management. The salary requirements of Section 8 of this administrative regulation shall not apply to business owners established in this subsection.

(3) A person who performs activities established in 29 C.F.R. 541.102 shall be considered engaged in management.

(4) A customarily recognized department or subdivision shall comply with the criteria established in 29 C.F.R. 541.103.

(5) An executive exempt as established in KRS 337.010(2)(a)2. shall comply with the criteria established in 29 C.F.R. 541.104.

(6) An employee's suggestions and recommendations shall be given "particular weight" if the factors established in 29 C.F.R. 541.105 have been met.

(7) The criteria for concurrent performance of exempt and nonexempt work shall be as established 20 C.F.R. 541.106.

Section 3. Administrative Employees.

(1) The term "individual employed in a bona fide administrative capacity" in KRS 337.010(2)(a)2 shall include employees:

(a) Compensated on a salary basis at a rate of not less than $684 per week, exclusive of board, lodging, or other facilities; and

(b) Who meet the criteria as established in 29 C.F.R. 541.200(a)(2) and 541.200(a)(3).

(2) To qualify for the administrative exemption in KRS 337.010(2)(a)2, the criteria shall be as established in 29 C.F.R. 541.201 through 541.204.

Section 4. Professional Employees.

(1) The term "individual employed in a bona fide professional capacity" in KRS 337.010(2)(a)(2) shall include employees:

(a) Compensated on a salary or fee basis at a rate of not less than $684 per week, exclusive of board, lodging, or other facilities; and

(b) Who meet the criteria as established in 29 C.F.R. 541.300(a)(2).

(2) To qualify for the learned professional exemption, the criteria shall be as established in 29 C.F.R. 541.301.

(3) To qualify for the creative professional exemption, the criteria shall be as established in 29 C.F.R. 541.302.

(4) Teachers.

(a) The term "individual employed in a bona fide professional capacity" in KRS 337.010(2)(a)2 shall include any employee as established in 29 C.F.R. 541.303(a) through (c).

(b) The salary requirements of Section 8 of this administrative regulation shall not apply to the teaching professionals established in this subsection.

(5) Practice of law or medicine.

(a) The term "individual employed in a bona fide professional capacity" in KRS 337.010(2)(a)2 shall include any employee as established in 29 C.FR. 541.304(a) through 541.304(c).

(b) The salary requirements of Section 8 of this administrative regulation shall not apply to the employees established in this subsection.

Section 5. Supervisors. The term "individual employed in a bona fide supervisory capacity" in KRS 337.010(2)(a)2 shall include employees:

(1) Compensated for his or her services on a salary basis at a rate of not less than $684 per week, exclusive of board, lodging, or other facilities; and

(2) Who meet the criteria as established in 29 C.F.R. 541.104.

Section 6. Outside Sales Employees.

(1) The term "individual employed in the capacity of outside salesman" in KRS 337.010(2)(a)2 shall include employees:

(a) Whose primary duty is:

1. Making sales; or

2. Obtaining orders or contracts for services or for the use of facilities for which consideration will be paid by the client or customer; and

(b) Customarily and regularly engaged away from the employer's place or places of business in performing the employee's primary duty.

(2) In determining the primary duty of an outside sales employee, the criteria shall be as established in 29 C.F.R. 541.500(b).

(3) The salary requirements of Section 8 of this administrative regulation shall not apply to employees established in this section.

(4) Making sales or obtaining orders.

(a) The criteria for making sales within the meaning of this section shall include criteria as established 29 C.F.R. 541.501(b) and 541.501(d).

(b) Obtaining orders for the use of facilities shall include the selling of time on radio or television, the solicitation of advertising for newspapers and other periodicals, and the solicitation of freight for railroads and other transportation agencies.

(5) The criteria for an outside sales employee to be customarily and regularly engaged "away from the employer's place or places of business" shall be as established in 29 C.F.R. 541.502.

(6) The criteria for determining if promotional work is exempt under this section shall be as established in 29 C.F.R. 541.503.

(7) The criteria for exempt drivers who sell under this section shall be as established in 29 C.F.R. 541.504.

Section 7. Outside Collector.

(1) The term "individual employed as an outside collector" in KRS 337.010(2)(a)2 shall include any employee who is employed for the purpose of and who is customarily and regularly engaged away from his employer's place or places of business and whose primary duty is collecting money for:

(a) Goods or services previously or presently provided by the employer; or

(b) An account placed in the hands of his employer for collection.

(2) In determining the primary duty of an outside collector, work performed incidental to and in conjunction with the employee's outside collection activities shall be exempt work.

(3) The salary requirements of Section 8 of this administrative regulation shall not apply to the outside collector employees established in this section.

Section 8. Salary Requirements.

(1) To qualify as an exempt executive, administrative, professional, or supervisory employee under KRS 337.010(2)(a)2, an employee shall be compensated on a salary basis at a rate of not less than $684 per week, exclusive of board, lodging, or other facilities. Administrative and professional employees may also be paid on a fee basis as established in Section 12 of this administrative regulation.

(2) The $684 per week may be translated into equivalent amounts for periods longer than one (1) week. The requirement shall be met if the employee is compensated biweekly on a salary basis of at least $1,368, semimonthly on a salary basis of at least $1,482, or monthly on a salary basis of at least $2,964. The shortest period of payment that meets this compensation requirement shall be one (1) week.

(3) For academic administrative employees, the compensation requirement may be met by compensation on a salary basis at a rate at least equal to the entrance salary for teachers in the educational establishment by which the employee is employed, as established in Section 4(4)(b) of this administrative regulation.

(4) For computer employees, the compensation requirement also may be met by compensation on an hourly basis at a rate not less than twenty-seven (27) dollars and sixty-three (63) cents an hour, as established in Section 14 of this administrative regulation.

(5) The exception from the salary or fee requirement shall not apply to pharmacists, nurses, therapists, technologists, sanitarians, dietitians, social workers, psychologists, psychometrists, or other professions that service the medical profession.

Section 9. Highly-compensated Employees.

(1) An employee with total annual compensation of at least $107,432 shall be exempt under KRS 337.010(2)(a)2 if the employee customarily and regularly performs any one (1) or more of the exempt duties or responsibilities of an executive, administrative, or professional employee established in this administrative regulation.

(2)

(a) "Total annual compensation" shall include at least $684 per week paid on a salary or fee basis. Total annual compensation may also include commissions, nondiscretionary bonuses, and other nondiscretionary compensation earned during a fifty-two (52) week period.

(b) "Total annual compensation" shall not include board, lodging, or other facilities as established in Section 13 of this administrative regulation and shall not include payments for medical insurance, payments for life insurance, contributions to retirement plans, and the cost of other fringe benefits.

(c) If an employee's total annual compensation does not total at least the minimum amount established in subsection (1) of this section by the last pay period of the fifty-two (52) week period, the employer may, during the last pay period or within one (1) month after the end of the fifty-two (52) week period, make one (1) final payment sufficient to achieve the required level.

(d) An employee who does not work a full year for the employer, either because the employee is newly hired after the beginning of the year or ends the employment before the end of the year, may qualify for exemption under this section if the employee receives a pro rata portion of the minimum amount established in subsection (1) of this section, based upon the number of weeks that the employee will be or has been employed. An employer may make one (1) final payment as under paragraph (c) of this subsection within one (1) month after the end of employment.

(e) The employer may use any fifty-two (52) week period as the year, such as a calendar year, a fiscal year, or an anniversary of hire year. If the employer does not identify some other year period in advance, the calendar year shall apply.

(3) A highly compensated employee shall qualify for exemption if the employee customarily and regularly performs any one (1) or more of the exempt duties or responsibilities of an executive, administrative, or professional employee established in this administrative regulation.

(4) This section shall not apply to employees whose primary duty includes performing nonoffice or manual work.

Section 10. Salary Basis.

(1)

(a) The criteria for an employee to be considered paid "on a salary basis" within the meaning of this administrative regulation shall be as established by 29 C.F.R. 541.602(a)(1) through 541.602(a)(2).

(b) Up to ten (10) percent of the salary amount required in paragraph (a) of this subsection may be satisfied by the payment of nondiscretionary bonuses, incentives and commissions, that are paid annually or more frequently.

1. The employer may utilize any fifty-two (52) week period as the year, such as a calendar year, fiscal year, or an anniversary of hire year. If the employer does not identify some other year period in advance, the calendar year shall apply.

2. This provision shall not apply to highly compensated employees.

3. If by the last pay period of the fifty-two (52) week period the sum of the employee's weekly salary plus nondiscretionary bonus, incentive, and commission payments received is less than fifty-two (52) times the weekly salary amount required, the employer may make one (1) final payment sufficient to achieve the required level no later than the next pay period after the end of the year. Any final payment made after the end of the fifty-two (52) week period shall count only toward the prior year's salary amount.

4. An employee who does not work a full fifty-two (52) week period for the employer, either because the employee is newly hired after the beginning of this period or ends the employment before the end of this period, may qualify for exemption if the employee receives a pro rata portion of the minimum amount established, based upon the number of weeks that the employee will be or has been employed. An employer may make one (1) final payment under subparagraph 3. of this paragraph within one (1) pay period after the end of employment.

(2)

(a) The exceptions to the prohibition against deductions from pay in the salary basis requirement shall be as established in 29 C.F.R. 541.602(b)(1) and 541.602(b)(3) through 541.602(c).

(b) Deductions from pay in the salary basis requirement may be made for absences of one (1) or more full days occasioned by sickness or disability, if the deduction is made in accordance with a bona fide plan, policy, or practice of providing compensation for loss of salary occasioned by both sickness and disability.

1. If the employer's particular plan, policy, or practice provides compensation for the absences, deductions for absences of one (1) or more full days because of sickness or disability may be made before an employee has qualified under the plan, policy, or practice, and after the employee has exhausted his or her leave allowance thereunder. It is not required that the employee be paid any portion of his or her salary for the day or days for which the employee receives compensation for leave under the plan, policy or practice.

2. If the employer operates under a state sickness and disability insurance law, or a private sickness and disability insurance plan, deductions may be made for absences of one (1) or more full days if benefits are provided in accordance with the particular law or plan.

3. For an industrial accident, if the employer has a plan, policy, or practice of providing compensation for sickness and disability other than that relating to industrial accidents, the "salary basis" requirement shall be met if the employee is compensated for loss of salary in accordance with the applicable compensation law or the plan adopted by the employer.

(3) The effect of improper deductions from salary shall be as established in 29 C.F.R. 541.603.

Section 11. The criteria for the minimum guarantee plus extras shall be as established in 29 C.F.R. 604.

Section 12. The criteria for when administrative and professional employees may be paid on a fee basis, rather than on a salary basis shall be as established in 29 C.F.R. 541.605.

Section 13. Board, Lodging, or Other Facilities.

(1) The phrase "exclusive of board, lodging, or other facilities" shall mean "free and clear" or independent of any claimed credit for noncash items of value that an employer might provide to an employee.

(a) Costs incurred by an employer to provide an employee with board, lodging, or other facilities shall not count towards the minimum salary amount required for exemption under this administrative regulation.

(b) Separate transactions shall not be prohibited between employers and their employees, but the costs to employers associated with the transactions shall not be considered in determining if an employee has received the full required minimum salary payment.

(2) "Other facilities" shall include items similar to board and lodging, such as meals provided at company restaurants or cafeterias or by hospitals, hotels, or restaurants to their employees; meals, dormitory rooms, and tuition furnished by a college to its student employees; merchandise furnished at company stores or commissaries, including articles of food, clothing, and household effects; housing provides for dwelling purposes; and transportation provided to employees for ordinary commuting between their homes and work.

Section 14. Computer Employees.

(1) Computer system analysts, computer programmers, software engineers, or other similarly skilled workers in the computer field shall be eligible for an exemption as professionals under KRS 337.010(2)(a)2. Job titles shall not be determinative of the applicability of this exemption.

(2) The exemption for computer employees shall apply to any computer employee as established in 29 C.F.R. 541.400(b) and 541.402.

(3) The exemption for computer employees shall not include employees as established in 29 C.F.R. 541.401.

Section 15. Miscellaneous Provisions.

(1) The criteria for primary duty shall be as established in 29 C.F.R. 541.700.

(2) The phrase "customarily and regularly" shall be as established in 29 C.F.R. 541.701.

(3) Directly and closely related shall be as established in 29 C.F.R. 541.703

(4) The criteria for determining if the use of manuals precludes an exemption under KRS 337.010(2)(a)2 shall be as established in 29 C.F.R. 541.704.

(5) The criteria for the prohibition of KRS 337.010(2)(a)2 exemption to trainees shall be as established in 29 C.F.R. 541.705.

(6) The criteria for the application of emergencies to exempt employees shall be as established in 29 C.F.R. 541.706.

(7) The criteria for determining if occasional tasks preclude exemption under KRS 337.010(2)(a)2 shall be as established in 29 C.F.R. 541.707.

(8) The criteria for the exemption of employees performing a combination of exempt duties as established in this administrative regulation shall be as established in 29 C.F.R. 541.708.

(9) The requirement that the employee be paid on a salary basis shall not apply to an employee in the motion picture producing industry who is compensated at a base rate of at least $1,043 a week (exclusive of board, lodging, or other facilities).

(a) An employee in this industry who is otherwise exempt under Sections 2, 3, or 4 of this administrative regulation, and who is employed at a base rate of at least $1,043 a week shall be exempt if paid a proportionate amount, based on a week of not more than six (6) days, for any week in which the employee does not work a full workweek for any reason.

(b) An otherwise exempt employee in this industry shall qualify for exemption if the employee is employed at a daily rate under the following circumstances:

1. The employee is in a job category for which a weekly base rate is not provided, and the daily base rate would yield at least $1,043 if six (6) days were worked; or

2. The employee is in a job category having a weekly base rate of at least $1,043, and the daily base rate is at least one-sixth (1/6) of such weekly base rate.

(10) Employees of public agencies.

(a) An employee of a public agency who otherwise meets the salary basis requirements of Section 10 of this administrative regulation shall not be disqualified from exemption under Sections 2, 3, 4, 5, or 14 of this administrative regulation on the basis that the employee is paid according to a pay system established by statute, ordinance, or administrative regulation, or by a policy or practice established pursuant to principles of public accountability, under which the employee accrues personal leave and sick leave and that requires the public agency employee's pay to be reduced or the employee to be placed on leave without pay for absences for personal reasons or because of illness or injury of less than one (1) work-day if accrued leave is not used by an employee because:

1. Permission for its use has not been sought or has been sought and denied;

2. Accrued leave has been exhausted; or

3. The employee chooses to use leave without pay.

(b) Deductions from the pay of an employee of a public agency for absences due to a budget required furlough shall not disqualify the employee from being paid on a salary basis except in the workweek in which the furlough occurs and for which the employee's pay is accordingly reduced.

History

• RELATES TO: KRS 337.275, 337.285, 29 C.F.R. 541
• STATUTORY AUTHORITY: KRS 337.010(2)(a)2, 337.295
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 337.010(2)(a)2 requires exemption for any individual employed in a bona fide executive, administrative, supervisory, or professional capacity, or in the capacity of outside salesman or as an outside collector as the terms are defined by administrative regulations of the commissioner from both the minimum wage and overtime requirements established in KRS 337.275 and 337.285. This administrative regulation establishes what constitutes an individual employed in a bona fide executive, administrative, supervisory, or professional capacity, or in the capacity of an outside salesman or outside collector.
• History: 48 Ky.R. 2339, 2770, 2981; eff. 8-30-2022.

803 KAR 1:076 Exclusions from minimum wage and overtime {#sec-803-kar-1-076 omnilex-key=us-ky-regs-official--title-803--803 KAR 1:076}

Section 1. Definitions.

(1) "Excise taxes" means taxes levied on:

(a) The manufacture, sale, or consumption of a commodity; and

(b) Licensure to pursue certain occupations and corporate privileges.

(2) "Hotel":

(a) Means an establishment known to the public as a hotel, which is primarily engaged in providing lodging or lodging and meals for the general public. Included are hotels operated by membership organizations and open to the general public and apartment hotels that provide accommodations for transients; and

(b) Does not mean an establishment with income primarily from providing a permanent place of residence or from providing residential facilities complete with bedrooms and kitchen for prolonged periods.

(3) "Motel" means an establishment that provides services similar to that of a "hotel" defined in subsection (2) of this section, but that caters mostly to the motoring public, providing it with motor car parking facilities either adjacent to the room or cabin rented or at some other easily accessible place. Included in the term "motel" are those establishments known to the public as motor hotels, motor lodges, motor courts, motor inns, tourist courts, and tourist lodges.

(4) "Restaurant":

(a) Means an establishment primarily engaged in selling and serving retail prepared food and beverages for consumption. This includes establishments commonly known as lunch counters, refreshment stands, cafes, cafeterias, coffee shops, diners, dining rooms, lunch rooms, and tea rooms; and

(b) Does not mean:

1. Drinking establishments, such as bars or cocktail lounges, whose sale of alcoholic beverages exceed the receipts from sales of prepared foods and nonalcoholic beverages; or

2. Establishments offering meal service on a boarding or term basis or providing the service only as an incident to the operation of a business of another kind and primarily to meet institutional needs for continuing meal service to persons whose continued presence is required for operation, such as a boarding house; dining facilities of a boarding school, college, or university that serves its students and faculty; lunchroom facilities for private and public day school students; and other institutional food service facilities providing long-term meal service to stable groups of individuals as an incident to institutional operations in a manner wholly dissimilar to the typical transactions between a restaurant and its customers.

(5) "Retail store" or "service industry" means an establishment seventy-five (75) percent of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.

Section 2. Hotel or Motel. If hotels or motels are primarily engaged in providing lodging facilities, food, and drink to the public, the exemption established for hotels and motels in KRS 337.010(2)(a)6 and 337.285 shall stand even if the hotel or motel engages in all or some of the following activities:

(1) The operation of valet services offering cleaning and laundering service for the garments of their guests;

(2) News stands;

(3) Hobby shops;

(4) Renting out of their public rooms for meetings;

(5) Lectures;

(6) Dances;

(7) Trade exhibits; or

(8) Weddings.

Section 3. Exemptions from Minimum Wage and Overtime.

(1) Employees of retail stores, service industries, hotels, motels, and restaurant operations whose average annual gross volume of sales made for business done is less than $95,000 for the five (5) preceding years, exclusive of excise taxes at the retail level, shall be exempt from both the minimum wage and overtime provisions.

(2) To qualify for this exemption, the establishment shall be recognized as retail in the particular industry. Typically, a retail or service establishment sells goods or services to the general public and serves the everyday needs of the community in which it is located. The retail or service establishment performs a function in the business organization that is at the end of the stream of distribution, disposing in small quantities of the products and skills of the organization and does not take part in the manufacturing process.

(3) To compute the average annual gross volume of sales made for business done, the business shall add all the sales made for business done for the five (5) preceding years, exclusive of excise taxes at the retail level, and divide by five (5). If this average is less than $95,000, the establishment shall be exempt.

(a) If the establishment has been in business for less than five (5) years, the gross sales shall be totaled for the years the establishment has been in business and divided by the number of years. If this average is less than $95,000, the establishment shall be exempt.

(b) If the establishment has been in business for less than one (1) year, the gross sales shall be totaled for the number of months the establishment has been in business and divided by the number of months. This amount shall then be multiplied by twelve (12). If this amount is less than $95,000, the establishment shall be exempt.

(c) Excise taxes at the retail level shall not be computed in totaling the gross volume of sales. Excise taxes levied at the manufacturers, wholesalers, or other distributive level shall not be excluded in calculating the dollar volume of sales.

Section 4. Exemptions from Overtime.

(1) Employees of retail stores with principal duties connected with the selling, purchasing, and distributing of goods and employees of a restaurant, hotel, and motel operation. An employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935, 27 U.S.C. 213, any sales person, parts person, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if the employee is employed by a nonmanufacturing establishment primarily engaged in the business of selling the vehicles or implements to ultimate purchasers; or any sales person primarily engaged in selling trailers, boats, or aircraft, if the employee is employed by a nonmanufacturing establishment primarily in the business of selling trailers, boats, or aircraft to ultimate purchasers; any driver employed by an employer engaged in the business of operating taxi cabs; employees whose function is to provide twenty-four (24) hour residential care on the employer's premises in a parental role to children who are primarily dependent, neglected and abused and who are in the care of private nonprofit child caring facilities licensed by the Cabinet for Health and Family Services under KRS Chapter 199, and any individual who is employed by a third-party employer or agency other than the family or household using his or her services to provide in-home companionship services for a sick, convalescing, or elderly person shall be exempt from the overtime provisions of KRS 337.285.

(2) An employee of a retail store with principal duties not connected to the selling, purchasing, and distributing of the goods shall not be considered as exempt employees, and nor shall an employee of a service establishment that does not sell goods, but is in the business of selling a service.

History

• RELATES TO: KRS Chapter 199, 337.010, 337.275, 337.285, 29 U.S.C. 213, 29 C.F.R. 782.2
• STATUTORY AUTHORITY: KRS 337.295
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 337.010 requires the exclusion certain types of employees from being subject to the minimum wage and overtime provisions of KRS 337.275, and KRS 337.285 requires the exclusion of certain employees from its coverage. This administrative regulation establishes exclusions from minimum wage and overtime provisions.
• History: 48 Ky.R. 2342, 2984; eff. 8-30-2022.

803 KAR 1:091 Workers with Disabilities and Work Activities Centers' employee's wages {#sec-803-kar-1-091 omnilex-key=us-ky-regs-official--title-803--803 KAR 1:091}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 337.010(1)(a).

(2) "Department" is defined in KRS 337.010(1)(b).

(3) "Work Activities Centers" means centers planned and designed to provide therapeutic activities for workers with severe disabilities affecting their productive capacity. The purpose of work activities centers is carrying out a recognized program of rehabilitation for workers with disabilities and providing the individuals with remunerative employment or other occupational rehabilitating activity of an educational or therapeutic nature.

(4) "Worker with a Disability" is defined by 29 C.F.R. 525.3(d).

Section 2.

(1) An employer shall not employ a worker with a disability or work activities center employee at less than the applicable minimum wage, unless the employment has been authorized by a special certificate issued by the commissioner or by the U.S. Department of Labor. The rate of pay and the period of time effective shall be established by the certificate.

(2) If the minimum wage established by KRS 337.275 is less than or equal to the federal minimum wage, the commissioner shall not issue certificates for persons whose employment is subject to the federal minimum wage provisions of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. 201. For these persons the employer shall request a certificate from the U.S. Department of Labor. Valid certificates issued by the U.S. Department of Labor, Wage Hour Division, which authorize rates of pay lower than the applicable Kentucky minimum wage, shall be accepted as authority to pay subminimum wage rates, if the information submitted in the applications is complete and accurate. If there is any reason to believe that the employment is, or may be in the future, subject to the FLSA minimum wage, the federal certificate shall be obtained and a state certificate shall not be necessary.

(3) For workers with disabilities or work activities center employees not covered by the minimum wage provisions of the FLSA, certificates may be issued by the commissioner if all of the requirements for federal certification are met. These requirements shall be as published in 29 C.F.R. Part 525. For state certification, the commissioner shall exercise the authority and functions that the administrator has for the federal certificates.

(4) In the event an employer misuses a certificate in any way, the commissioner reserves the right to revoke the certificate and to refuse to issue another certificate in the future. If the certificate was issued by the U.S. Department of Labor, the commissioner shall revoke any authority for payment of less than the minimum wage established by KRS 337.275.

(5) Application to Employ Workers with Disabilities at Subminimum Wages shall be submitted to the Division of Wages and Hours, Kentucky Department of Workplace Standards, Education and Labor Cabinet, 500 Mero Street, 3rd floor, Frankfort, Kentucky 40601 and shall be accompanied by the completed federal special minimum wage certificate applications, as appropriate under 29 C.F.R. Part 525.

Section 3. Incorporation by Reference.

(1) "Application to Employ Workers with Disabilities at Subminimum Wages", April 2022, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department of Workplace Standards, Education and Labor Cabinet, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

• RELATES TO: KRS 337.275 - 337.325, 337.285, 29 U.S.C. 201, 29 C.F.R. 525
• STATUTORY AUTHORITY: KRS 337.295
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 337.295 authorizes the commissioner to promulgate administrative regulations permitting workers with disabilities and work activities centers' employees to be employed at less than the established minimum wage. KRS 337.010(2)(a)5 requires that the wages be established for a period of time fixed by the commissioner. This administrative regulation establishes certain standards to be used in obtaining these special rates.
• History: 48 Ky.R. 2347, 2774, 2987; eff. 8-30-2022; TAm eff. 11-10-2022.

803 KAR 1:100 Child labor {#sec-803-kar-1-100 omnilex-key=us-ky-regs-official--title-803--803 KAR 1:100}

Section 1. Definitions.

(1) "Minor" means a person between the ages of fourteen (14) and eighteen (18) who is either:

(a) Enrolled in public, private, or home school; or

(b) Not enrolled in school and has not achieved the required credits for graduation from high school as established by a local school district authority, pursuant to KRS 160.290.

(2) "School in session" means that time as established by local school district authorities, pursuant to KRS 160.290.

(3) "School not in session" means that period of time not included in subsection (2) of this section.

Section 2. Employment of Minors Between Fourteen (14) and Sixteen (16) Years of Age.

(1) Minors between fourteen (14) and sixteen (16) years of age shall not be employed in any of the following:

(a) Manufacturing, mining, or processing occupations, including occupations requiring the performances of any duties in work rooms or work places where goods are manufactured, mined, or otherwise processed;

(b) Occupations which involve the operation or tending of hoisting apparatus or of any power-driven machinery other than office machines;

(c) The operation of motor vehicles or service as helpers on such vehicles;

(d) Public messenger service;

(e) Occupations in connection with:

1. Transportation of persons or property by rail, highway, air, water, pipeline, or other means;

2. Warehousing and storage;

3. Communications and public utilities; and

4. Construction (including demolition and repair), except office work, or sales work in connection with subparagraphs 1, 2, 3, and 4 of this paragraph, as does not involve the performance of any duties on trains, motor vehicles, aircraft, vessels, or other media of transportation or at the actual site of construction operations.

(f) Any occupation which the U.S. Secretary of Labor finds and declares to be hazardous for the employment of minors and established in 29 C.F.R. 570.50 through 570.68; or

(g) Any occupation prohibited under KRS 339.230(2)(d).

(2) Except as provided in subsection (3) of this section, employment in any of the occupations to which this section is applicable shall be confined to the following periods:

(a) Outside school hours;

(b) Not more than forty (40) hours in any one (1) work week when school is not in session;

(c) Not more than eighteen (18) hours in any one (1) work week when school is in session;

(d) Not more than eight (8) hours in any one (1) day when school is not in session;

(e) Not more than three (3) hours in any one (1) school day, nor more than eight (8) hours in any one (1) nonschool day when school is in session; and

(f) Between 7 a.m. and 7 p.m. in any one (1) day, except during the summer (June 1 through Labor Day) when the evening hour will be 9 p.m.

(3) Notwithstanding subsection (2)(a) of this section, a minor who is enrolled in a school supervised and administered work experience or career exploration program pursuant to 29 C.F.R. 570.35(a), if the employment will not interfere with the minor's schooling, health, or well-being, may work during school hours.

(4) Minors between fourteen (14) and sixteen (16) years of age may be employed by retail, food service, and gasoline service establishments in the following occupations:

(a) Office and clerical work, including the operation of office machines;

(b) Cashiering, selling, modeling, art work, work in advertising departments, window trimming, and comparative shopping;

(c) Price marketing and tagging by hand or by machine, assembling orders, packing and shelving;

(d) Bagging and carrying out customer's orders;

(e) Errand and delivery work by foot, bicycle, and public transportation;

(f) Clean up work, including the use of vacuum cleaners and floor waxers, and maintenance of grounds. Cleanup work shall not include the use of power-driven mowers, or cutters;

(g) Kitchen work and other work involved in preparing and serving food and beverages, including the operation of machines and devices used in the performance of such work, such as but not limited to: dishwashers, toasters, dumbwaiters, popcorn poppers, milk shake blenders, and coffee grinders;

(h) Work in connection with cars and trucks if confined to the following: dispensing gasoline and oil; courtesy service; car cleaning, washing, and polishing; and other occupations permitted by this section. This shall not include work involving the use of pits, racks, or lifting apparatus, or involving the inflation of any tire mounted on a rim equipped with a removable retaining ring; and

(i) Cleaning vegetables and fruits, and wrapping, sealing, labeling, weighing, pricing, and stocking goods if performed in areas physically separate from freezers and meat coolers.

(5) Subsection (4) of this section shall not be construed to permit the employment of minors between fourteen (14) and sixteen (16) years of age in any of the following in retail, food service, and gasoline service establishments:

(a) All occupations listed in subsection (1) of this section:

(b) Work performed in or about boiler or engine rooms;

(c) Work in connection with maintenance or repair of the establishment, machines, or equipment;

(d) Outside window washing that involves working from window sills, and all work requiring the use of ladders, scaffolds, or their substitutes;

(e) Cooking (except at soda fountains, lunch counters, snack bars, or cafeteria serving counters) and baking;

(f) Occupations which involve operating, setting up, adjusting, cleaning, oiling, or repairing power-driven food slicers and grinders, food choppers, and cutters, and bakery-type mixers;

(g) Work in freezers and meat coolers and all work in the preparation of meats for sale except as described in subsection (4)(i) of this section;

(h) Loading and unloading goods to and from trucks, railroad cars, or conveyors; or

(i) All occupations in warehouses except office and clerical work.

Section 3. Employment of Minors Between Sixteen (16) and Eighteen (18) Years of Age.

(1) Minors between sixteen (16) and eighteen (18) years of age may be employed at any occupation except as restricted for the following occupations:

(a) Occupations particularly hazardous as declared by the U. S. Secretary of Labor and established in 29 C.F.R. 570.50 through 570.68.

(b) Any occupation prohibited under KRS 339.230(2)(d).

(2) Employment in any occupation, not prohibited by subsection (1) of this section, shall be confined to the following periods:

(a) Not more than thirty (30) hours in any one (1) work week when school is in session, except that a minor may work up to thirty-two and one-half (32.5) hours in any one (1) work week if a parent or legal guardian gives permission in writing in accordance with paragraph (c) of this subsection and up to forty (40) hours in any one (1) work week if a parent or legal guardian gives permission in writing, and the principal or head of the school the minor attends certifies in writing that the minor has maintained at least a 2.0 grade point average in the most recent grading period. School certification shall be valid for one (1) year unless revoked sooner by the school authority. The parental or guardian permission and school certification shall remain at the employer's place of business;

(b) Not more than six (6) hours in any one (1) school day, nor more than eight (8) hours in any one (1) non-school day when school is in session, except that a minor may work up to six and one-half (6.5) hours in any one (1) school day if a parent or guardian gives permission in writing in accordance with paragraph (c) of this subsection;

(c) Between 6 a.m. and 10:30 p.m. on days preceding a school day, except that a minor may be employed until 11:00 p.m. on days preceding a school day if a parent or legal guardian gives permission in writing. The parental or guardian permission shall remain at the employer's place of business; and

(d) Between 6 a.m. and 1 a.m. on days preceding a non-school day when school is in session.

History

• RELATES TO: KRS 339.205-339.990, 29 C.F.R. Part 570, 29 U.S.C. 201-219
• STATUTORY AUTHORITY: KRS 339.230
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 339.230(3) requires the Commissioner of the Department of Workplace Standards to promulgate administrative regulations to protect the life, health, safety, or welfare of minors. The commissioner may consider sex, age, premises of employment, substances to be worked with, machinery to be operated, number of hours, hours of the day, nature of the employment, and other pertinent factors. KRS 339.230(3) further provides that the commissioner in promulgating these administrative regulations may make them more restrictive than those promulgated by the United States Secretary of Labor under provisions of the Fair Labor Standards Act and its amendments but in no event may he or she make them less restrictive. This administrative regulation establishes standards for the employment of minors. This administrative regulation and KRS 339.205 to 339.990 shall guide the Department of Workplace Standards in carrying out its responsibilities under the law and assist employers in understanding their obligations under the law.
• History: LAB 120; 1 Ky.R. 157; eff. 12-11-1974; Am. 3 Ky.R. 245; eff. 11-3-1976; 6 Ky.R. 61; 179; eff. 9-5-1979; 583; eff. 7-2-1980; 28 Ky.R. 2081; 2350; eff. 5-16-2002; TAm eff. 8-9-2007; 44 Ky.R. 680, 935; eff. 12-1-2017; Cert eff. 11-21-2024.

Chapter 2 Occupational Safety and Health

803 KAR 2:010 Board procedures {#sec-803-kar-2-010 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:010}

Section 1. Definitions.

(1) "Board" is defined by KRS 338.015(6).

(2) "Chairman" means chairperson of the Kentucky Occupational Safety and Health Standards Board.

(3) "Chairperson Pro Tem" means the board member elected by the members of the board to chair any board meeting in the absence of the chairperson.

Section 2. The chairperson of the board shall administer the oath of office, if necessary, when the board convenes.

Section 3. The board shall meet annually, or when additional meetings are needed, at the call of the chairperson in a location designated by the chairperson.

Section 4.

(1) Board decisions require a majority vote.

(2) The chairperson shall have the same rights and duties as all other members, including the right to introduce, discuss, and vote on any matter before the board.

Section 5.

(1) The board shall keep and preserve a record of the proceedings of its meetings including the time, place, members present, and votes.

(2) Committees shall keep and preserve a similar record.

Section 6.

(1) The board shall hold a public hearing prior to the adoption, promulgation, modification, or repeal of any standard or administrative regulation.

(2) Notice of the hearing stating the date, time, location, and a brief description shall be posted on the Education and Labor Cabinet website not less than ten (10) calendar days before the hearing.

(3) Notice shall not be required prior to the adoption of federal standards received by the Education and Labor Cabinet after general notice of the board meeting.

(4) Any interested person may petition, in writing, the Secretary of the Education and Labor Cabinet to promulgate, amend, or repeal a standard. The petition shall articulate the terms, substance, effects, and reason.

(5) Within a reasonable time after the receipt of a submission pursuant to subsection (4) of this section, the secretary shall notify the board and it may afford an opportunity for a hearing.

Section 7.

(1) Hearings shall be conducted in accordance with the following procedures, which may be suspended or modified when deemed necessary.

(2) The members of the board shall elect a chairperson pro tem whose duties shall be to chair any meeting of the board in the absence of the chairperson.

(3) The chairperson pro tem shall be a member of the board and shall not lose the right to vote while acting as chairperson.

(4) The chairperson pro tem shall be elected for a term of two (2) years or until a successor is elected. If the chairperson pro tem ceases to be a member of the board prior to the expiration of his or her term as chairperson pro tem, a new chairperson pro tem shall be elected by the board at the next board meeting.

(5) Any interested person may appear at the hearing to offer testimony or evidence if, at the opening of the hearing, or at an earlier time as the chairperson directs, the person files with the chairperson a notice of appearance which shall set forth the:

(a) Name and address of person appearing;

(b) Name and address of person represented, if any; and

(c) Approximate length of time for presentation.

(6) Each person filing a notice of appearance will be notified, if practicable, of the approximate day and the place at which he or she may offer evidence at the hearing. If the person does not appear at the time set in the notice, he or she will not be permitted to offer evidence at any time except by special permission of the chairperson.

(7) At the discretion of the chairperson, the hearing may be continued to a later date, or to a different place, by chairperson announcement at the hearing.

Section 8.

(1) The chairperson may appoint standing and special committees.

(2) A committee shall meet at the call of its chairperson or the chairperson of the board at the time and place designated by either chairperson.

History

• RELATES TO: KRS 338.051
• STATUTORY AUTHORITY: KRS 338.051
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. This administrative regulation establishes board procedures.
• History: OSH 4-1; 1 Ky.R. 833; eff. 5-14-1975; Am. 8 Ky.R. 1444; eff. 7-7-1982; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 1261, 1960; eff. 7-6-2021; TAm eff. 11-10-2022.

803 KAR 2:019 Receiving and unloading bulk hazardous liquids {#sec-803-kar-2-019 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:019}

Section 1. Definitions.

(1) "Compliance safety and health officer" means a person authorized by the Commissioner of the Department of Workplace Standards, Education and Labor Cabinet, to conduct occupational safety and health inspections.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Hazardous liquid" means a chemical or mixture of chemicals that is toxic, an irritant, corrosive, a strong oxidizer, a strong sensitizer, combustible, flammable, extremely flammable, dangerously reactive or pressure generating, or that otherwise could cause substantial personal injury or substantial illness during, or as a direct result of, any customary or reasonably foreseeable handling or use.

Section 2. Scope. This administrative regulation establishes specific requirements for chemical handling procedures to control receiving and transfer to storage of bulk hazardous liquids and shall not apply to receiving gasoline, fuel oil, or liquefied petroleum gas at retail or wholesale outlets or to industrial filling stations in which the industry standard operating procedure requires the hauler to make connections and complete delivery.

Section 3. General Requirements.

(1) Signs and labels shall be posted as established in paragraphs (a) through (c) of this subsection.

(a) At bulk chemical receiving and storage facilities capable of unloading tank trucks or trailers, signs and labels, readily legible at normal operating positions, shall indicate appropriate contents and item identification at receiving and dispensing connections, valves, tanks, and the storage area perimeter.

(b) Prominently displayed signs at critical access points shall direct tank truck drivers to plant security stations or to supervisory personnel. Signs at the unloading area shall give specific instruction to drivers not to connect truck tank hoses to chemical receiving lines.

(c) Bills of lading, freight bills, or accompanying paper work shall have each hazardous chemical clearly identified by its shipping name or, if not otherwise specified, by its common name. Handling information clearly indicated for receiver information shall be included.

(2) Receiving liquid chemicals.

(a) Receiving of bulk liquid chemicals shall be coordinated by the receiving department or persons responsible for receiving. Only those persons trained and authorized shall make the required chemical identification and perform or supervise the unloading of hazardous chemicals.

(b) Prior to unloading, the person receiving bulk liquid chemicals shall make an inspection of the accompanying papers, check the load, and ascertain its identity.

(c) If necessary for identification, chemical testing shall be accomplished prior to acceptance.

(d) The person authorized to receive bulk liquid chemicals shall direct the driver to the proper unloading area.

(e) The receiving area, where chemicals are unloaded, shall be secured in a locked enclosure or all receiving connections shall be under lock and key or made secure by other positive means.

(f) The person authorized to receive bulk liquid chemicals shall be responsible for control of keys or combination to locking devices.

(g) The tank truck driver may make connection to the tank truck.

1. A person authorized to receive bulk liquid chemicals shall make connection to company receiving connections and supervise the unloading into storage.

2. The tank truck driver may make both connections if the person authorized to receive bulk liquid chemicals is present to identify, check, and supervise the connection and unloading.

3. In receiving areas where more than one (1) chemical is stored, the tank connection shall be individually keyed.

4. Connection to different chemical receiving systems shall be locked by separated keying arrangement.

5. Due caution shall be made to prevent spills and to assure the receiving tank is not overfilled.

6. Prior arrangements shall be made to assure that inadvertent overflow is controlled without exposing employees.

(h) Upon completion of unloading, the receiving device or the enclosure shall be locked and the key returned to its designated security location or other equivalent action taken to secure the chemical inventory.

(3) Training.

(a) A person responsible for the acceptance of potentially hazardous chemicals shall have an understanding of the particular hazards associated with those chemicals individually and in combination.

(b) Internal written operating procedures shall be prepared. All employees exposed to the hazards addressed by this administrative regulation shall be trained in these procedures.

(c) Written emergency evacuation plans shall be prepared and practiced by all potentially affected employees.

(d) Copies of the operating procedures, emergency evacuation plans, and a listing of personnel authorized to receive bulk chemicals shall be on the premises and available to employees and to compliance safety and health officers.

History

• RELATES TO: KRS 338.051, 338.061
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are to be enforced by the Department of Workplace Standards in general industry.
• History: 6 Ky.R. 652; eff. 7-2-1980; 23 Ky.R. 1682; eff. 12-13-1996; 47 Ky.R. 1622, 2369; eff. 8-3-2021; TAm eff. 11-10-2022.

803 KAR 2:021 Identification, classification and regulation of potential occupational carcinogens {#sec-803-kar-2-021 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:021}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined in KRS 338.015(2).

(3) "Employer" is defined in KRS 338.015(1).

Section 2. Except as modified by Section 1 of this administrative regulation, general industry and the construction industry shall comply with 29 C.F.R. 1990, Identification, Classification, and Regulation of Potential Carcinogens, published by the Office of the Federal Register, National Archives and Records Administration, General Services Administration.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. Part 1990
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes criteria and procedures for the identification, classification, and regulation of potential occupational carcinogens.
• History: 6 Ky.R. 701; eff. 8-6-1980; Am. 7 Ky.R. 249; eff. 10-1-1980; 491; eff. 1-6-81; 923; eff. 7-1-1981; 47 Ky.R. 1465; eff. 8-3-2021.

803 KAR 2:050 Scope {#sec-803-kar-2-050 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:050}

Section 1. Definitions.

(1) "Employee" is defined by KRS 338.015(2).

(2) "Employer" is defined by KRS 338.015(1).

Section 2. The administrative regulations promulgated under 803 KAR Chapter 2 shall apply to all employers, employees, and places of employment throughout the Commonwealth pursuant to KRS 338.021.

History

• RELATES TO: KRS Chapter 338.021
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards.
• History: OSH 102; 1 Ky.R. 158; eff. 12-11-1974; Am. 6 Ky.R. 589; eff. 7-2-1980; 47 Ky.R. 1467, 2370; eff. 8-3-2021.

803 KAR 2:060 Employer responsibility to post notice {#sec-803-kar-2-060 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:060}

Section 1. Definitions.

(1) "Employee" is defined by KRS 338.015(2).

(2) "Employer" is defined by KRS 338.015(1).

(3) "Establishment" means a single physical location where business is conducted or where services or industrial operations are performed such as a factory, mill, store, hotel, restaurant, movie theater, farm, ranch, bank, sales office, warehouse, or central administrative office.

Section 2. Posting.

(1) Each employer shall post and keep posted a notice or notices created by the Education and Labor Cabinet informing employees of the protections and obligations established in KRS Chapter 338 including information that employees may contact the employer or the Education and Labor Cabinet for occupational safety and health assistance and information.

(2) The notice created by the Education and Labor Cabinet shall be available on the Education and Labor Cabinet Web site at Labor.ky.gov.

(3) The notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted.

(4) If distinctly separate activities are performed at a single physical location, such as construction activities at the same physical location, each activity shall be treated as a separate physical establishment and a separate notice or notices shall be posted in each establishment.

(5) If employers are engaged in activities that are physically dispersed, such as agriculture, construction, gas and sanitary services, transportation, communications, and electric services, the notice or notices shall be posted at the location to which employees report each day.

(6) If employees do not usually work at, or report to, a single establishment, such as traveling salesmen, technicians, and engineers, the notice or notices shall be posted at the location where employees operate to carry out their activities.

(7) In all cases, notice or notices shall be posted in accordance with the requirements of this administrative regulation.

(8) Each employer shall take steps to ensure the notice or notices are not altered, defaced, or obscured.

Section 3. Availability of Administrative Regulations.

(1) All applicable occupational safety and health administrative regulations shall be available on the Education and Labor Cabinet Web site at Labor.ky.gov.

(2) If an employer has copies of these materials, the employer shall make the copies available upon request to any employee or authorized employee representative for review in the establishment where the employee is employed on the same day the request is made or at the earliest time mutually convenient to the employee or authorized employee representative and the employer.

History

• RELATES TO: KRS 338.051, 29 C.F.R. Part 1903
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes employers' responsibility to post notices provided by the Education and Labor Cabinet and availability of safety and health administrative regulations.
• History: OSH 103; 1 Ky.R. 158; eff. 12-11-1974; 3 Ky.R. 249; eff. 10-6-1976; 24 Ky.R. 1145; 1510; eff. 1-12-1998; TAm eff. 8-9-2007; TAm eff. 9-8-2011; TAm eff. 7-17-2014; 47 Ky.R. 2655; 48 Ky.R. 800; eff. 11-30-2021; TAm eff. 11-10-2022.

803 KAR 2:062 Employer responsibility for an employee exposed to toxic substances or harmful physical agents {#sec-803-kar-2-062 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:062}

Section 1. Definitions.

(1) "Board" is defined by KRS 338.015(6).

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Occupational safety and health standard" is defined by KRS 338.015(3).

Section 2. General Requirements.

(1) Employers shall monitor areas where employees are exposed to potentially toxic substances or harmful physical agents that are required to be monitored or measured pursuant to standards adopted by the board pursuant to KRS Chapter 338.

(2) Employers shall provide employees or their representatives an opportunity to observe monitoring or measuring.

(3)

(a) Each employer shall promptly notify every employee who was or is exposed to toxic materials or harmful physical agents in concentrations or levels that exceed those established by applicable standards adopted by the board pursuant to KRS Chapter 338.

(b) If it is required that exposure to certain toxic substances or agents is limited or prohibited, each employer shall:

(4) Notify employees who are subject to exposure;

(5) Inform employees of the corrective action required, if any; and

(6) Notify employees when action will be, or was, taken.

(7)

(a) Each employer shall make and maintain records of all monitoring activity required by this administrative regulation and make appropriate provisions whereby each employee, former employee, or a representative of either, has access to records that indicate the levels the employee or former employee was exposed.

(b) Each employee, former employee, or representative of either, shall be allowed to copy records pertaining to her or his exposure levels or the exposure levels of the employee or former employee she or he is representing.

History

• RELATES TO: KRS Chapter 338
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. This administrative regulation establishes employer responsibility for an employee exposed to toxic substances or harmful physical agents.
• History: 3 Ky.R. 276; eff. 10-6-1976; 47 Ky.R. 2658; 48 Ky.R. 803; eff. 11-30-2021.

803 KAR 2:070 Inspections {#sec-803-kar-2-070 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:070}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 338.015.

(2) "Compliance safety and health officer" means a person authorized by the commissioner to conduct occupational safety and health inspections and investigations.

(3) "Compulsory process" means the institution of any appropriate action, including ex parte application for an inspection, investigation, or warrant or its equivalent.

(4) "Director" means Director, Division of Occupational Safety and Health Compliance.

(5) "Employee" is defined by KRS 338.015(2).

(6) "Employer" is defined by KRS 338.015(1).

Section 2. Authority for Inspections.

(1) Compliance safety and health officers shall be authorized to conduct inspections pursuant to KRS 338.101.

(2) Prior to inspecting areas containing information classified by an agency of the United States Government in the interest of national security, compliance safety and health officers shall obtain the appropriate security clearance.

Section 3. Objection to Inspection.

(1) If an employer refuses to permit a compliance safety and health officer to enter without delay and at reasonable times any place of employment to inspect; review records; question any employer, owner, operator, agent, or employee; or permit a representative of employees to accompany the compliance safety and health officer during the physical inspection of any workplace, the compliance safety and health officer shall terminate the inspection or confine the inspection to areas, conditions, structures, machines, apparatus, devices, equipment, materials, records, or interviews concerning which no objection is raised.

(2) The compliance safety and health officer shall endeavor to ascertain the reason for the refusal and immediately report the refusal and reason to the commissioner.

(3) The commissioner shall promptly take appropriate action including compulsory process if necessary.

(4)

(a) Compulsory process may be sought in advance of an inspection if, in the judgment of the commissioner, circumstances exist that make a pre-inspection process desirable or necessary.

(b) It may be desirable or necessary to seek compulsory process in advance of an attempt to inspect if:

1. The employer's past practice implicitly or explicitly puts the commissioner on notice that a warrantless inspection will not be allowed;

2. Procuring a warrant prior to conducting the inspection would avoid, in case of refusal, the expenditure of significant time and resources to obtain a warrant and return to the establishment or worksite; or

3. An inspection includes the use of special equipment or the presence of an expert, or experts, is needed to conduct the inspection and procuring a warrant prior an inspection would alleviate the difficulties or costs encountered in coordinating the availability of equipment or an expert.

(5) With the approval of the commissioner as established in this section, the director or other designee may obtain compulsory process.

(6) Ex parte inspection warrants shall be the preferred form of compulsory process if compulsory process is relied upon.

Section 4. Entry not a Waiver. Any permission to enter, inspect, review records, or question any person, shall not imply or be conditioned upon a waiver of any cause of action, citation, or penalty pursuant to KRS Chapter 338.

Section 5. Conduct of Inspections.

(1) Inspections shall take place at times and places as the commissioner or designee directs.

(2) At the beginning of an inspection, or as soon as practical, the compliance safety and health officer shall:

(a) Present her or his credentials to the owner, operator, or agent in charge at the establishment or worksite;

(b) Explain the nature and purpose of the inspection;

(c) Indicate generally the scope of the inspection and the records she or he wishes to review. The designation of records shall not preclude access to additional records;

(d) Have authority to take environmental samples, photographs, videos, oral recordings, and statements; and

(e) Employ other reasonable investigative techniques, such as the use of devices to measure employee exposures and the attachment of personal sampling equipment such as dosimeters, pumps, badges, and other similar devices to employees in order to monitor their exposures.

(3) In taking photographs and samples, compliance safety and health officers shall take reasonable precautions to ensure that actions with flash, spark-producing, or other equipment shall not be hazardous.

(4) Compliance safety and health officers shall comply with employer safety and health rules and practices at the establishment or worksite and wear, as well as use, appropriate personal protective equipment.

(5) The conduct of an inspection shall preclude unreasonable disruption of operations at the employer's establishment or worksite.

(6)

(a) At the conclusion of an inspection, the compliance safety and health officer shall offer conference with the employer and informally advise her or him of apparent violations.

(b) The employer shall be afforded an opportunity to bring to the attention of the compliance safety and health officer any pertinent information regarding conditions in the workplace.

History

• RELATES TO: KRS 338.101
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference standards. This administrative regulation establishes the authority for conducting occupational safety and health inspections and the procedure to be followed by the compliance officers during the conduct of the inspections.
• History: 6 Ky.R. 210; eff. 11-7-1979; Am. 8 Ky.R. 1449; eff. 7-7-1982; 10 Ky.R. 308; eff. 9-7-1983; 652; eff. 12-2-1983; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 2660; 48 Ky.R. 806; eff. 11-30-2021.

803 KAR 2:080 Advance notice of inspections {#sec-803-kar-2-080 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:080}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 338.015(7).

(2) "Compliance Safety and Health Officer" means a person authorized by the commissioner to conduct occupational safety and health inspections.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

Section 2. Advance Notice of Inspection.

(1) Advance notice of inspections shall not be given, except:

(a) In cases of apparent imminent danger, to enable the employer to abate the danger as quickly as possible;

(b) In circumstances where the inspection can most effectively be conducted after regular business hours or where special preparations are necessary;

(c) When necessary to assure the presence of representatives of the employer or employees or the appropriate personnel needed to aid in the inspection; or

(d) When the commissioner, or designee, determines that advance notice would enhance the probability of an effective and thorough inspection.

(2)

(a) Advance notice may be given by the compliance safety and health officer without commissioner, or designee, authorization if the commissioner, or designee, is not immediately available.

(b) When advance notice is given, it shall be employer's responsibility to promptly notify the authorized representative of the employees of the inspection, if the identity of the representative is known to the employer.

(c) Upon the request of the employer, the compliance safety and health officer may inform the authorized representative of employees of the inspection, provided the employer furnishes the compliance safety and health officer the identity of the representative and with information necessary to enable him or her promptly to inform the representative.

Section 3. An employer who fails to comply with the requirements of this administrative regulation may be subject to citation and penalty pursuant to KRS 338.991.

Section 4. Except in apparent imminent danger situations or other unusual circumstances, advance notice shall not be given more than twenty-four (24) hours before the inspection is scheduled to be conducted.

History

• RELATES TO: KRS 338.991(9)
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards enforced by the Department of Workplace Standards in construction and general industry.
• History: OSH 106; 1 Ky.R. 159; eff. 12-11-1974; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 1469, 2371; eff. 8-3-2021.

803 KAR 2:090 Complaint inspections {#sec-803-kar-2-090 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:090}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 338.015(7).

(2) "Employer" is defined by KRS 338.015(1).

Section 2.

(1) Inspections conducted pursuant to KRS 338.121 shall not be limited to matters referred to in the complaint.

(2) If a citation is issued for a violation or danger alleged in the complaint, a copy of the citation shall be sent to the complainant on or about the same time it is sent to the employer.

Section 3. Informal Review When No Citation Warranted.

(1) If the commissioner determines that a citation is not warranted with respect to a danger or violation alleged in the complaint, the complainant shall be informed in writing of the determination and of her or his right of review of the determination.

(2) The complaining party may obtain review by submitting a written statement of position to the commissioner.

(3) Upon request of the complaining party, the commissioner, at her or his discretion, may hold an informal conference in which the complaining party may present her or his views.

(4) After considering all views presented, the commissioner shall affirm, modify, or reverse her or his determination and furnish the complaining party a written notification of her or his decision and the reasons therefore.

(5) The decision of the commissioner shall be final and not subject to further review.

Section 4. Informal Review When Inspection Not warranted.

(1) If the commissioner determines that an inspection is not warranted, she or he shall notify the complaining party in writing of the determination.

(2) The complaining party may obtain review of the determination by submitting a written statement of position to the commissioner.

(3) Upon request of the complaining party, the commissioner, at her or his discretion, may hold an informal conference in which the complaining party may present her or his views.

(4) After considering all views presented, the commissioner shall affirm, modify, or reverse her or his determination and furnish the complaining party a written notification of her or his decision and the reasons therefore.

(5) The decision of the commissioner shall be final and not subject to further review.

(6) The determination shall be without prejudice to the filing of a new complaint pursuant to KRS 338.121.

History

• RELATES TO: KRS 338.121
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes occupational safety and health complaint procedures.
• History: OSH 107; 1 Ky.R. 160; eff. 12-11-1974; Am. 9 Ky.R. 43; eff. 8-11-1982; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 1471, 2371; eff. 8-3-2021.

803 KAR 2:100 Imminent danger {#sec-803-kar-2-100 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:100}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 338.015(7).

(2) "Compliance Safety and Health Officer" means a person authorized by the commissioner to conduct occupational safety and health inspections.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

Section 2. Imminent Danger.

(1) When a compliance safety and health officer concludes on the basis of an inspection that conditions or practices exist that could reasonably be expected to cause death or serious physical harm immediately or before the imminence of the danger can be eliminated through the enforcement procedures otherwise provided by KRS Chapter 338, the compliance safety and health officer shall inform the affected employee and employer of the danger.

(2) The compliance safety and health officer shall notify the affected employee and employer that if the imminent danger is not immediately abated, the compliance safety and health officer is recommending a civil action to restrain the conditions or practices and for other appropriate relief pursuant to KRS 338.133.

(3) A citation may be issued even though, after being informed of the danger by the compliance safety and health officer, the employer immediately eliminates the imminence of the danger and initiates steps to abate the danger.

History

• RELATES TO: KRS 338.131
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes occupational safety and health imminent danger procedures in construction and general industry.
• History: OSH 108; 1 Ky.R. 160; eff. 12-11-1974; 47 Ky.R. 1473, 2372; eff. 8-3-2021.

803 KAR 2:110 Employer and employee representatives {#sec-803-kar-2-110 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:110}

Section 1. Definitions.

(1) "Compliance safety and health officer" means a person authorized by the commissioner to conduct occupational safety and health inspections or investigations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

Section 2. Representatives of Employers and Employees.

(1) The compliance safety and health officer shall be in charge of the inspection and questioning of persons.

(2) A representative of the employer and a representative authorized by her or his employees shall be given an opportunity to accompany the compliance safety and health officer.

(3) The compliance safety and health officer may permit additional employer representatives and additional representatives authorized by employees to accompany her or him if she or he determines it aids the inspection.

(4) A different employer and employee representative may accompany the compliance safety and health officer during each different phase of an inspection if it does not interfere with the conduct of the inspection.

(5) The compliance safety and health officer shall have authority to resolve all disputes as to who is the representative authorized by the employer and employees.

(6) If there is no authorized representative of employees, or if the compliance safety and health officer is unable to determine with reasonable certainty who is the representative, she or he shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.

(7) The representative or representatives authorized by employees may be an employee of the employer or a third party.

(8) If the authorized representative is not an employee of the employer, the representative may accompany the Compliance Safety and Health Officer during the inspection if, in the judgment of the Officer, good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct an effective and thorough physical inspection of the workplace (including but not limited to, in accordance with 29 C.F.R. 1903.8(c), because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).

(9) A compliance safety and health officer may consult with employees concerning matters of occupational safety and health necessary for an effective and thorough inspection.

(10) During the course of an inspection, any employee shall be afforded an opportunity to bring any violation of KRS Chapter 338 that she or he has reason to believe exists in the workplace to the attention of the compliance safety and health officer.

(11) The compliance safety and health officer shall be authorized to deny accompaniment to any person whose conduct interferes with the inspection.

(12) Accompaniment in areas containing trade secrets shall be in accordance with KRS 338.171.

(13) Only persons authorized access to information classified by an agency of the United States government may accompany a compliance safety and health officer in areas containing information.

History

• RELATES TO: KRS 338.111, 338.171
• STATUTORY AUTHORITY: KRS 338.051, 338.061, 29 C.F.R. 1903.8(a), (c)
• NECESSITY, FUNCTION, AND CONFORMITY: KRS.338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes employer and employee representation during an inspection.
• History: OSH 109; 1 Ky.R. 161; eff. 12-11-1974; 47 Ky.R. 2663; 48 Ky.R. 804; eff. 11-30-2021; 51 Ky.R. 996, 1454; eff. 5-6-2025.

803 KAR 2:115 Penalties {#sec-803-kar-2-115 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:115}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 338.015(7).

(2) "Compliance safety and health officer" means a person authorized by the commissioner to conduct occupational safety and health inspections.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

(5) "Review commission" is defined by KRS 338.015(8).

(6) "Working days" means Monday through Friday but does not include Saturday, Sunday, federal or state holidays, and the day of receipt of notice.

Section 2. Proposed Penalties.

(1) After, or concurrent with, the issuance of a citation, and within a reasonable time, the commissioner shall notify, with delivery or receipt confirmation, the employer of the proposed penalty or that no penalty is proposed.

(2) A notice of proposed penalty shall state that the proposed penalty shall be deemed a final order of the review commission and not be subject to review by any court or agency if an employer, employee, or representative of the employer or employee fails to notify the commissioner in writing within fifteen (15) working days from the receipt of the proposed penalty that he or she intends to contest the proposed penalty.

(3) The commissioner shall determine the amount of any proposed penalty pursuant to KRS 338.991, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

(4) Appropriate penalties may be proposed with respect to an alleged violation even though after being informed of an alleged violation by the compliance safety and health officer, the employer immediately abates, or initiates steps to abate, an alleged violation.

History

• RELATES TO: KRS 338.141, 338.991
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes occupational safety and health penalty procedures followed by the Department of Workplace Standards.
• History: OSH 110; 1 Ky.R. 161; eff. 12-11-1974; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 1475, 2373; eff. 8-3-2021.

803 KAR 2:120 Citations {#sec-803-kar-2-120 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:120}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 338.015.

(2) "Compliance safety and health officer" means a person authorized by the commissioner to conduct occupational safety and health inspections.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

(5) "Occupational safety and health standard" is defined by KRS 338.015(3).

(6) "Review commission" is defined by KRS 338.015(8).

(7) "Working days" means Monday through Friday and does not include Saturday, Sunday, federal or state holidays, or the day of receipt of notice.

Section 2. Citations.

(1) If the commissioner has reason to believe that an employer violated a requirement of KRS Chapter 338, or any occupational safety and health standard, rule, or order promulgated pursuant KRS Chapter 338, the commissioner shall issue, with delivery or receipt confirmation, the employer a citation indicating the violation.

(2) An appropriate citation shall be issued even if after being informed of an alleged violation by the compliance safety and health officer, the employer immediately abates, or initiates steps to abate, the alleged violation.

(3) A citation shall not be issued more than six (6) months after the occurrence of any alleged violation.

Section 3. Content of Citation.

(1) Each citation shall describe with particularly the alleged violation, including a reference to the provision or provisions of KRS Chapter 338, standard, rule, or administrative regulation alleged to have been violated.

(2) Each citation shall establish a reasonable date for the elimination of the alleged violation.

(3) Each citation may propose a civil penalty.

Section 4. Citations Issued for Requested Inspections. If a citation is issued for a violation alleged in request for inspection pursuant KRS 338.121, a copy of the citation shall be sent, with delivery or receipt confirmation, to the employee or representative of employees who made the request or notification.

Section 5. Final Order Statement. Each citation shall state the citation shall be deemed a final order of the review commission and not be subject to review by any court or agency if an employer, employee, or representative of the employees fails to notify the commissioner within fifteen (15) working days from the receipt of the citation that he or she intends to contest the citation.

History

• RELATES TO: KRS Chapter 338
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes occupational safety and health citation procedures followed by the Department of Workplace Standards.
• History: 803 KAR 002:120. OSH 111; 1 Ky.R. 161; eff. 12-11-1974; Am. 3 Ky.R. 250; eff. 10-6-1976; TAm eff. 8-9-2007; TAm eff., 9-8-2011; 47 Ky.R. 1624, 2373; eff. 8-3-2021; 52 Ky.R. 508; eff. 3-3-2026.

803 KAR 2:122 Abatement {#sec-803-kar-2-122 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:122}

Section 1.

(1) "Abatement" means action by an employer to comply with a cited regulation, standard, statute, or order to eliminate a hazard identified by the Division of Occupational Safety and Health Compliance.

(2) "Abatement date" means as established in paragraphs (a) and (b) of this subsection.

(a) For an uncontested citation item, "abatement date" means the later of the date:

1. In the citation for abatement of the violation;

2. Approved by Division of Occupational Safety and Health Compliance or established in litigation as a result of a petition for modification of the abatement date (PMA); or

3. Established in a citation by an informal settlement agreement.

(b) For a contested citation item for which the Kentucky Occupational Safety and Health Review Commission (KOSHRC) has issued a final order affirming the violation, "abatement date" means the later of the date:

1. Identified in the final order for abatement;

2. Computed by adding the period allowed in the citation for abatement to the final order date; or

3. Established by a formal settlement agreement.

(3) "Affected employees" means employees who exposed to a hazard identified as violation in a citation.

(4) "C.F.R." means Code of Federal Regulations.

(5) "Commissioner" is defined by 803 KRS 338.015(7).

(6) "Compliance officer" means a person authorized by the commissioner to conduct occupational safety and health inspections and investigations.

(7) "Employee" is defined by KRS 338.015(2).

(8) "Employer" is defined by KRS 338.015(1).

(9) "Final order date" means as established in paragraphs (a) and (b) of this subsection.

(a) For an uncontested citation item, "final order date" means the 15th working day after the employer's receipt of the citation.

(b) For a contested citation item, "final order date" means:

1. The 30th day after the date a decision or order of a commission hearing officer has been docketed with the commission, unless a member of the commission has directed review;

2. If review has been directed, the date the commission issues its decision or order disposing of all or pertinent part of a case; or

3. The date an appeals court issues a decision affirming the violation in a case if a final order of the review commission has been stayed.

(10) "Movable equipment" means a hand held or non-hand held machine or device, powered or unpowered, used to do work and moved within a worksite or between worksites.

(11) "Review commission" is defined by KRS 338.015(8).

(12) "Working days" means Monday through Friday and does not include Saturday, Sunday, federal, or state holidays, and the day of receipt of notice.

Section 2. Extension or Modification of Abatement.

(1) An employer may apply for an extension or modification of abatement with the commissioner or designee after the employer made a good faith effort to comply with the abatement requirements but abatement is not completed due to factors reasonably beyond the employer's control.

(2) The application for extension or modification of abatement, as established in subsection (7) of this section, shall be made no later than 4:30 p.m. Eastern Time on the day abatement is required.

(3) A later filed petition shall be accompanied by the employer's written statement of exceptional circumstances explaining the delay.

(4) The application for extension or modification of abatement shall be posted for ten (10) working days in a conspicuous location where all affected employees have notice or near the location where the violation occurred.

(5) An application for extension or modification of abatement shall be in writing or may be made orally if time does not permit a written application.

(6) If an application for extension or modification of abatement is made orally, a written application shall follow the oral request within three (3) working days.

(7) Every application for extension or modification of abatement shall include:

(a) All steps taken by the employer, and the dates of action, in an effort to achieve compliance during the established abatement period;

(b) The specific additional time or modification necessary to achieve compliance;

(c) The reason additional time or modification is necessary;

(d) All interim steps implemented to safeguard employees against the hazard; and

(e) Certification the application for extension or modification of abatement was posted for ten (10) working days and, if appropriate, provided to the authorized representative of affected employees including the date the posting and service were made.

(8)

(a) Affected employees or their representatives may file a written objection to the application with the commissioner within ten (10) working days of the date of posting of the petition or service upon an authorized representative.

(b) Failure to file an objection within ten (10) working days of the date of posting of the petition or service upon an authorized representative, shall constitute a waiver of any further right to object to the application.

(9) The commissioner or designee shall rule on the application for extension or modification of abatement within three (3) working days of receipt of the application.

(10) Adversely affected employees may appeal an extension or modification of abatement pursuant to KRS 338.141.

(11) If an application for extension or modification of abatement is denied, the employer may appeal pursuant to KRS 338.141.

Section 3. Abatement Certification.

(1) Within ten (10) calendar days after the abatement date, the employer shall certify to the commissioner that each cited violation is abated, except as established in subsection (2) of this section.

(2) The employer shall not be required to certify abatement if the compliance officer, during the on-site portion of the inspection:

(a) Observes, within twenty-four (24) hours after a violation is identified, that abatement occurred; and

(b) The citation states that abatement occurred.

(3) The employer's certification that abatement is complete shall include, for each cited violation, in addition to the information required by this administrative regulation, the date and method of abatement and a statement that affected employees and their representatives have been informed of the abatement.

Section 4. Abatement Documentation.

(1) The employer shall submit documents demonstrating that abatement is complete for each cited violation.

(2) Documents demonstrating that abatement is complete may include evidence of the purchase or repair of equipment, photographic or video evidence of abatement, or other written records.

Section 5. Abatement Plan.

(1) The commissioner may require an employer to submit an abatement plan if the time permitted for abatement is more than ninety (90) calendar days.

(2) The citation shall state than an abatement plan shall be required.

(3)

(a) The employer shall submit an abatement plan for each cited violation within twenty-five (25) calendar days from the final order date if the citation indicates that a plan shall be required.

(b) The abatement plan shall identify the violation and the steps to be taken to achieve abatement including a schedule for completing abatement and, where necessary, how employees will be protected from exposure to the hazard or violative condition until abatement is complete.

(4) Progress reports.

(a) An employer required to submit an abatement plan may be required to submit periodic progress reports for each cited violation.

(b) If an employer is required to submit periodic progress reports, the citation shall indicate:

1. That periodic progress reports shall be required and the citation items for which they shall be required;

2. The date the initial progress report shall be submitted, which shall be no sooner than thirty (30) calendar days after submission of an abatement plan;

3. Additional progress reports that shall be required; and

4. The dates additional progress reports shall be submitted.

(c) For each violation, the progress report shall identify the action taken to achieve abatement and the date the action was taken.

Section 6. Employee Notification.

(1) The employer shall inform affected employees and their representative about abatement activities by posting a copy of each document submitted to the commissioner or a summary of the document near the place where the violation occurred.

(2) If posting does not effectively inform employees and their representatives about abatement activities, the employer shall:

(a) Post each document or a summary of the document in a location where it is readily observable by affected employees and their representatives; or

(b) Take other steps to communicate fully to affected employees and their representatives about abatement activities.

(3)

(a) The employer shall inform employees and their representatives of their right to examine and copy all abatement documents submitted to the commissioner.

(b) An employee or an employee representative shall submit a request to the employer to examine and copy abatement documents within three (3) working days of receiving notice that documents were submitted to the commissioner.

(c) The employer shall comply with an employee or employee representative request to examine and copy abatement documents within five (5) working days of receiving the request.

(4)

(a) The employer shall ensure that notice to employees and employee representatives shall be provided at the same time or before the information is provided to the commissioner.

(b) The employer shall ensure that abatement documents:

1. Shall not be altered, defaced, or covered by other material; and

2. Remain posted for at least three (3) working days after submission to the commissioner.

Section 7. Transmitting Abatement Documents.

(1) The employer shall include in each submission:

(a) The employer's name and address;

(b) The inspection number;

(c) The citation and item number;

(d) A statement that information submitted is accurate; and

(e) The signature of the employer or the employer's authorized representative.

(2) The postmark date shall be the date of submission for mailed documents.

(3) For documents transmitted by other means, the date the commissioner receives the document shall be the date of submission.

Section 8. Moveable Equipment.

(1) The employer shall attach a warning tag or a copy of the citation to the operating controls or to the cited component of equipment moved within the worksite or between worksites.

(2) Attaching a copy of the citation meets the tagging requirement of this administrative regulation as well as the posting requirement established in 803 KAR 2:125.

(3) The employer shall attach a warning tag that:

(a) Properly warns employees about the nature of the violation involving the equipment; and

(b) Identifies the location of the citation issued.

(4)

(a) If the violation is not abated, a warning tag or copy of the citation shall be attached to hand held equipment immediately after the employer receives the citation.

(b) If the violation is not abated, a warning tag or copy of the citation shall be attached to non-hand held equipment prior to moving the equipment within or between worksites.

(5) For the construction industry, a tag designed and used in accordance with 29 C.F.R. 1926.20(b)(3) and 29 C.F.R. 1926.200(h) meets the requirements of this section if the information required by this section is included on the tag.

(6) The employer shall ensure the tag or copy of the citation attached to movable equipment shall not be altered, defaced, or covered, or obscured by other material.

(7) The employer shall ensure the tag or copy of the citation attached to movable equipment shall remain attached until:

(a) The violation is abated and all abatement verification documents required by this administrative regulation are submitted to the commissioner;

(b) The cited equipment is permanently removed from service or is no longer in the employer's control; or

(c) The review commission issues a final order vacating the citation.

Section 9. The commissioner shall assume authority to modify abatement pursuant to KRS 338.141(2) if review commission jurisdiction expires.

Section 10. Nonmandatory examples of abatement-related forms that apply to 29 C.F.R. 1903.19 appendices shall include:

(1) Appendix A, Sample Abatement Certification Letter;

(2) Appendix B, Sample Abatement Plan or Progress Report; and

(3) Appendix C, Sample Warning Tag.

Section 11. Incorporation by Reference. The following nonmandatory appendices to 29 C.F.R. 1903.19 are incorporated by reference:

(1) Appendix A, Sample Abatement Certification Letter;

(2) Appendix B, Sample Abatement Plan or Progress Report; and

(3) Appendix C, Sample Warning Tag.

History

• RELATES TO: KRS 338.141
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes the form of the application for extension of abatement, steps necessary to make application, content of the application, form and timing for the ruling of the Commissioner of the Department of Workplace Standards on the application, and, appeal available to the parties adversely affected by the decision on the application.
• History: 5 Ky.R. 833; Am. 1067; eff. 6-6-1979; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R.2665; 48 Ky.R. 805; eff. 11-30-2021.

803 KAR 2:125 Posting of citation {#sec-803-kar-2-125 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:125}

Section 1. Definitions.

(1) "Employee" is defined by KRS 338.015(2).

(2) "Employer" is defined by KRS 338.015(1).

(3) "Review commission" is defined by KRS 338.015(8).

(4) "Working days" means Monday through Friday and does not include Saturday, Sunday, federal, or state holidays, and the day of receipt of notice.

Section 2. Posting.

(1) Upon receipt of any citation, the employer shall immediately post the unedited citation, or a copy of the unedited citation, at or near each place the alleged violation occurred, except as established in subsections (1) through (6) of this section.

(2) If, because of the nature of the employer's operations, it is not practicable to post the unedited citation, or a copy of the unedited citation, at or near each place of alleged violation, the unedited citation, or a copy of the unedited citation, shall be posted in a prominent place where it is readily observable by all affected employees such as a location where employees report each day.

(3) The unedited citation, or a copy of the unedited citation, may be posted at the location employees carry out their activities if the employees do not primarily work at, or report to, a single location.

(4) The employer shall ensure the unedited citation or copy of the unedited citation shall not be altered, defaced, or obscured.

(5)

(a) Each unedited citation, or copy of the unedited citation, shall remain posted until the violation is abated, or for three (3) working days, whichever is later.

(b) The filing by the employer of a notice to contest shall not affect the posting responsibility unless the review commission issues a final order vacating the citation.

(6)

(a) An employer that receives a citation shall post a notice indicating the citation is contested in the same location where the unedited citation, or copy of the unedited citation, is posted.

(b) The notice may explain the reason for the contest.

(c) The employer may indicate specific steps taken to abate the violation.

History

• RELATES TO: KRS 338.101
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes procedures for the posting of citations by the employer.
• History: OSH 112; 1 Ky.R. 162; eff. 12-11-1974; Am. 5 Ky.R. 819; eff. 6-6-1979; 47 Ky.R. 2669; 48 Ky.R. 807; eff. 11-30-2021.

803 KAR 2:127 Failure to correct violation {#sec-803-kar-2-127 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:127}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 338.015.

(2) "Employer" is defined in KRS 338.015(1).

(3) "Review commission" is defined in KRS 338.015(8).

(4) "Working day" means Monday through Friday and does not include Saturday, Sunday, federal, or state holidays, and the day of receipt of notice.

Section 2.

(1) If an inspection discloses that an employer failed to correct an alleged violation for which a citation was issued within the period permitted for its correction, the commissioner shall notify the employer of the failure and the additional penalty proposed pursuant to KRS 338.991(4).

(2) The period for the correction of a violation shall not begin until the entry of a final order of the review commission in the case of any proceedings initiated by the employer in good faith and not solely for delay or avoidance of penalties.

Section 3.

(1) Any employer receiving a notification of failure to correct a violation and proposed additional penalty pursuant to KRS 338.991(4) may notify the commissioner or designee in writing that she or he contests.

(2)

(a) The notice of contest shall be transmitted within fifteen (15) working days of receipt.

(b) The commissioner shall transmit the notice to the review commission in accordance with the rules of procedure prescribed by the commission in accordance with KRS 338.071.

Section 4. Each notification of failure to correct a violation and proposed additional penalty shall state that it shall be a final order of the review commission and not subject to review by any court or agency, as established by KRS 338.141, unless, within fifteen (15) working days from the date of receipt of the notification, the employer notifies the commissioner or designee in writing that she or he contests the notification of proposed additional penalty before the review commission.

History

• RELATES TO: KRS 338.071, 338.141, 338.991(4)
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes failure to correct violation procedures followed by the Department of Workplace Standards and employers.
• History: 5 Ky.R. 834; eff. 6-6-1979; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 2671; 48 Ky.R. 808; eff. 11-30-2021.

803 KAR 2:130 Informal conference {#sec-803-kar-2-130 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:130}

Section 1. Definitions.

(1) Commissioner is defined by KRS 338.015.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Working day" means Monday through Friday and does not include Saturday, Sunday, federal, or state holidays, and the day of receipt of notice.

Section 2. Informal Conference.

(1) At the request of an affected employer, employee, or representative of employees, the commissioner or designee may hold an informal conference for the purpose of discussing issues raised by an inspection, investigation, citation, notice of proposed penalty, or notice to contest.

(2) If the informal conference is requested by the employer, an affected employee or employee representative shall be afforded an opportunity to participate, at the discretion of the commissioner or designee.

(3) If the informal conference is requested by an employee or representative of employees, the employer shall be afforded an opportunity to participate, at the discretion of the commissioner or designee.

(4) Any party may be represented by counsel.

(5) An informal conference or request for an informal conference shall not serve as a stay or extension of the fifteen (15) working day period to file a notice of contest pursuant to 803 KAR 2:140.

History

• RELATES TO: KRS 338.101
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes procedures to be followed in conducting informal conferences requested by the employer, employee, or representative of employees.
• History: OSH 113; 1 Ky.R. 162; eff. 12-11-1974; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 2673; 48 Ky.R. 809; eff. 11-30-2021.

803 KAR 2:140 Contest of citation {#sec-803-kar-2-140 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:140}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 338.015.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Review commission" is defined by KRS 339.015(8).

(5) "Working days" means Monday through Friday and does not include Saturday, Sunday, federal or state holidays, and the day of receipt of notice.

Section 2. Procedure.

(1)

(a) An employer that receives a citation may notify the commissioner in writing that she or he contests the citation, proposed penalty, or both.

(b) The notice of contest shall be transmitted by the employer within fifteen (15) working days of receipt of citation.

(c) The notice of contest shall specify whether it is directed to the citation, proposed penalty, or both.

(d) The commissioner shall immediately transmit the notice to the review commission in accordance with the rules of procedure prescribed by the commission in accordance with KRS 338.071.

(2) Any employee or representative of employees of an employer that receives a citation may notify the commissioner in writing that she or he contest the:

(a) Time established in the citation for the abatement of the violation; or

(b) Citation, or proposed penalty, or both.

(3)

(a) The notice shall be postmarked within fifteen (15) working days of the receipt by the employer of the notice of the citation.

(b) The commissioner shall immediately transmit the notice to the review commission in accordance with the rules of procedure prescribed by the commission in accordance with KRS 338.071.

History

• RELATES TO: KRS Chapter 338
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes procedures to be followed in contesting a citation or penalty issued by the Commissioner of the Department of Workplace Standards.
• History: OSH 114-1; 1 Ky.R. 162; eff. 12-11-1974; TAm eff. 8-9-2007; TAm eff.9-8-2011; 47 Ky.R. 2674; 48 Ky.R. 809; eff. 11-30-2021.

803 KAR 2:170 Variance and interim order {#sec-803-kar-2-170 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:170}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 338.015.

(2) "Employee" is defined by KRS 338.0159(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Review commission" is defined by KRS 338.015(8).

Section 2. This administrative regulation shall not apply to variances granted pursuant to KRS 338.153(2)(c).

Section 3. Effect of Variances and Interim Order.

(1) All variances and interim orders granted pursuant to this administrative regulation shall have only future effect.

(2) The commissioner may decline until the completion of the proceeding, a variance or interim order application for a subject or issue if a citation has been issued to the employer involved or a proceeding on a citation or related issue is pending before the review commission, or any other court.

Section 4. Public Notice of a Granted Variance or Interim Order. Every final action granting a variance or interim order establishing the alternative to the standard the variance permits shall be posted on the Education and Labor Cabinet Web site.

Section 5. Applications and Documents.

(1) There shall not be a standard form for applications and documents. Information to be submitted in applications and documents shall be as established in this administrative regulation.

(2) Applications and other documents shall be clearly legible.

(3) Each application or other document shall be signed by the person filing the application or document or by her or his attorney or other authorized representative.

Section 6. Temporary Variance.

(1) Application. Any employer requesting a temporary variance shall file a written application with the commissioner.

(2) An application shall include:

(a) The name and address of the applicant;

(b) The address of the place or places of employment involved;

(c) The specific standard from which the applicant seeks a variance;

(d) A representation by the applicant supported by representations from persons having firsthand knowledge of:

1. The facts represented;

2. Inability to comply with the standard; and

3. A detailed statement of the reasons therefore;

(e) A statement of the steps the applicant took or will take, with specific dates, to protect employees against the hazard covered by the standard;

(f) A statement of when the applicant will comply with the standard and steps taken, with specific dates, to come into compliance with the standard;

(g) A statement of the facts establishing the applicant:

1. Is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel, of materials and equipment needed to come into compliance with the standard, or because necessary construction or alteration of facilities cannot be completed by the effective date;

2. Is taking all available steps to safeguard employees against the hazards covered by the standard; and

3. Has an effective program for coming into compliance with the standard as quickly as practicable;

(h) Any request for a hearing;

(i) A statement attesting the applicant:

1. Informed affected employees of application by providing a copy of the application to the employees' authorized representative; and

2. Posted at the place or places where notices to employees are normally posted, and by other appropriate means, a summary of the application including, where a copy of the full application may be examined; and

(j) A description of how affected employees were informed of the application and their right to petition the commissioner for a hearing.

Section 7. Permanent Variance.

(1) Application. Any employer requesting a permanent variance shall file a written application with the commissioner.

(2) Contents. An application shall include:

(a) The name and address of the applicant;

(b) The address of the place or places of employment involved;

(c) A description of the condition, practice, means, method, operation or process proposed by the applicant;

(d) A statement showing how the condition, practice, means, method, operation or process proposed provide employment and places of employment to employees that are as safe and healthful as required by the standard;

(e) Certification the applicant informed all employees of the application that includes:

1. Providing a copy of the application to the employees' authorized representative; and

2. Posting at the place or places where notices to employees are normally posted, and by other appropriate means, a summary of the application including where a copy of the full application may be examined;

(f) Any request for a hearing; and

(g) A description of how employees were informed of the application and their right to petition the commissioner for a hearing.

Section 8. Interim Order.

(1) Application. An application may be made for an interim order in lieu of a variance or an order to be effective until a decision on a temporary or permanent variance application is rendered.

(a) An application made for an interim order in lieu of a temporary or permanent variance shall include the information required in Section 7(2) of this administrative regulation for a permanent variance.

(b) An application made for an interim order to be effective until a decision on a temporary or permanent variance application is rendered shall include statements of fact why the interim order should be granted.

(c) The commissioner may rule ex parte upon any application for an interim order.

(2) Denial of application. If an interim order application is denied, the commissioner shall provide written notice to the applicant accompanied by a statement of the grounds therefore.

(3) Grant of an interim order.

(a) If an interim order is granted, a copy of the order shall be provided to the applicant and, if necessary, other affected parties.

(b) The applicant shall provide notice within five (5) working days to affected employees by the same means used to inform them of the application.

(c) The interim order shall be published on the Education and Labor Cabinet's Web site until it expires.

Section 9. Modification, Revocation, and Renewal of a Variance or Interim Order.

(1) Modification or revocation. An affected employer or an affected employee may apply in writing to the commissioner for a modification or revocation of a variance or interim order issued pursuant to KRS 338.153. The application shall contain:

(a) The name and address of the applicant;

(b) A description of the relief sought;

(c) A statement with detailed grounds for relief;

(d) If the applicant is an employer, certification the applicant informed affected employees of the application by:

1. Giving a copy to the employees' authorized representative; and

2. Posting at the place or places where notices to employees are normally posted, and by other appropriate means, a summary of the application including where a copy of the full application may be examined or posting the application in lieu of the summary;

(e) If the applicant is an affected employee, certification that a copy of the application was provided to the employer; and

(f) Any request for a hearing.

(2)

(a) The commissioner may modify or revoke a variance or interim order in accordance with this administrative regulation.

(b) The commissioner shall:

1. Publish a notice on the Education and Labor Cabinet Web site of her or his intention, which affords interested persons an opportunity to submit written data, views, or arguments regarding the proposal and informing the affected employer and employees of their right to request a hearing, and

2. Take other appropriate action to provide notice to affected employees.

(c) Any request for a hearing shall include a short and plain statement of:

1. How the proposed modification or revocation affects the requesting party; and

2. What the requesting party seeks to show on the subject or issue involved.

(3) Renewal. Any variance or interim order issued pursuant to KRS 338.153 may be renewed or extended.

Section 10. Action on Applications.

(1) Defective applications.

(a) If an application does not conform to this administrative regulation, the commissioner shall deny the application.

(b) The commissioner shall give the applicant prompt written notice of the denial.

(c) A notice of denial shall include, or be accompanied by, a brief statement of the grounds for the denial.

(d) A denial of an application shall not prejudice the filing of another application.

(2) Adequate applications.

(a) If an application is not denied, the commissioner shall publish notice of the application on the Education and Labor Cabinet's Web site.

(b) The notice shall include:

1. The terms, or an accurate summary, of the application;

2. An invitation to submit written data, views, or arguments regarding the application; and

3. Information to request a hearing on the application.

Section 11. Requests for a Hearing on an Application.

(1) Request for hearing. Within the time established in the notice of the application, any affected employer or affected employee may file a request for a hearing on the application with the commissioner.

(2) Contents of a request for a hearing. A request for a hearing shall include:

(a) A concise statement of facts showing how the employer or employee is affected by the relief applied for;

(b) A specification of any statement or representation in the denied application and a concise summary of the evidence that would be adduced in support of each denial; and

(c) Any views or arguments on any issue of fact or law presented.

Section 12. Consolidation of Proceedings. The commissioner may consolidate or contemporaneously consider two (2) or more proceedings involving the same or closely related issues.

Section 13. Notice of Hearing.

(1) Service. Upon request for a hearing, the commissioner shall serve a notice of hearing.

(2) Contents. A notice of hearing shall include:

(a) The time, place, and nature of the hearing;

(b) The legal authority under which the hearing is to be held;

(c) A specification of issues of fact and law; and

(d) A designation of a hearing examiner as an authorized representative of the commissioner if the commissioner is not conducting the hearing.

(3) Referral to hearing examiner. A copy of the hearing notice shall be provided to the hearing examiner with a copy of the original application and a copy of any written request for a hearing.

Section 14. Manner of Service.

(1) Service of any document upon any party shall be made by personal delivery, mail, or other means.

(2) If service is by personal delivery, the person serving the document shall certify the manner and date of service.

Section 15. Hearing Examiners Powers and Duties.

(1) Powers. In accordance with KRS 338.081, the commissioner or hearing examiner shall have all powers necessary to conduct a fair, full, and impartial hearing, including the authority to:

(a) Administer oaths and affirmations;

(b) Rule upon offers of proof and receive relevant evidence;

(c) Provide for discovery and determine its scope;

(d) Regulate the course of the hearing and conduct of the parties and their counsel;

(e) Consider and rule upon procedural requests;

(f) Hold conferences for settlement or simplification of the issues by consent of the parties;

(g) Make, or to cause to be made, an inspection of the employment or place of employment involved;

(h) Make decisions in accordance with KRS Chapter 338; and

(i) Take any other appropriate action authorized by KRS Chapter 338 or 803 KAR Chapter 2.

(2) Private consultation. Except to the extent required for the disposition of ex parte matters, a hearing examiner shall not consult a person or party on any fact at issue, unless upon notice and opportunity for all parties to participate.

(3) Disqualification.

(a) If a hearing examiner deems herself or himself disqualified to preside over a particular hearing, she or he shall withdraw therefrom by notice on the record directed to the commissioner.

(b) Any party who deems a hearing examiner for any reason to be disqualified to preside, or to continue to preside, over a particular hearing, may file a motion with the commissioner to disqualify and remove the hearing examiner supported by an affidavit stating all alleged grounds for disqualification.

(c) The commissioner shall rule upon the motion.

(4) Contumacious conduct; failure or refusal to appear or obey the rulings of the hearing examiner.

(a) Contumacious conduct at any hearing before the hearing examiner shall be grounds for conclusion of the hearing.

(b) If a witness or a party refuses to answer a question or refuses to obey an order to provide or permit discovery, the hearing examiner may rule with regard to the refusal, including an order denying the application of an applicant or regulating the contents of the record of the hearing.

(c) Referral to Kentucky Rules of Civil Procedure. On any procedural question not regulated by this administrative regulation, the hearing examiner shall be guided to the extent practicable by any pertinent provisions of the Kentucky Rules of Civil Procedure.

Section 16. Prehearing Conferences.

(1) Convening a conference. Upon her or his own motion or motion of a party, the hearing examiner may direct the parties or their counsel to meet for a conference to consider:

(a) Simplification of the issues;

(b) Necessity or desirability of amendments to documents for purposes of clarification, simplification, or limitation;

(c) Stipulations, admissions of fact, and contents and authenticity of documents;

(d) Limitation of the number of parties or expert witnesses; and

(e) Other matters to expedite the disposition of the proceeding, and assure a just conclusion.

(2) Record of conference.

(a) The hearing examiner shall make an order that recites the:

1. Action taken at the conference;

2. Amendments allowed to any documents that have been filed and the agreements made between the parties as to any of the matters considered, and which limits the issues for hearing to those not disposed of by admissions or agreements.

(b) An entered order shall control the subsequent course of the hearing, unless modified at the hearing, to prevent manifest injustice.

Section 17. Consent Findings and Orders.

(1) General.

(a) At any time before the reception of evidence in any hearing, or during any hearing, a reasonable opportunity shall be afforded to permit negotiation by the parties of an agreement containing consent findings and an order disposing of the whole or any part of the proceeding.

(b) The allowance of this opportunity and the duration thereof shall be in the discretion of the hearing examiner after considering the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of an agreement that will result in a just disposition of the issues involved.

(2) Contents. Any agreement containing consent findings or order disposing of a proceeding shall include:

(a) That the finding or order shall have the same force and effect as if made after a full hearing;

(b) That the entire record on which any finding or order may be based shall consist solely of the application and the agreement;

(c) A waiver of any further procedural steps before the hearing examiner and the commissioner; and

(d) A waiver of any right to challenge or contest the validity of the finding or order made in accordance with the agreement.

(3) Submission. On or before the expiration of the time granted for negotiations, the parties or their counsel may:

(a) Submit the proposed agreement to the hearing examiner for her or his consideration; or

(b) Inform the hearing examiner that agreement cannot be reached.

(4) Disposition. In the event an agreement containing consent findings or order is submitted within the time allowed, the hearing examiner may accept the agreement by issuing her or his decision based upon the agreed findings.

Section 18. Discovery.

(1) Depositions.

(a)

1. For reasons of unavailability or for other good cause shown, the testimony of any witness may be taken by deposition.

2. Depositions may be taken orally or upon written interrogatories before any person designated by the hearing examiner and having power to administer oaths.

(b) Application. Any party desiring to take the deposition of a witness shall make application in writing to the hearing examiner, stating:

1. The reasons the deposition should be taken;

2. The date, time, place, name, and address of the person before whom the deposition is to be taken;

3. The name and address of each witness; and

4. The subject matter concerning which each witness is expected to testify.

(c) Notice. Notice as the hearing examiner may order shall be given by the party taking the deposition to every other party.

(d) Taking and receiving in evidence.

1. Each witness testifying upon deposition shall have the right to cross-examine her or him.

2. The questions propounded and the answers thereto, together with all objections made, shall be reduced to writing, read to the witness, subscribed by him, and certified by the officer before whom the deposition is taken.

3. Thereafter, the officer shall seal the deposition, with two (2) copies thereof, in an envelope and mail the same by registered mail to the hearing examiner.

4. Subject to objections to the questions and answers as were noted at the time of taking the deposition and would be valid were the witness personally present and testifying, the deposition may be read and offered in evidence by the party taking it as against any party who was present, represented at the taking of the deposition or who had due notice thereof.

(e) No part of a deposition shall be admitted in evidence unless there is a showing that the reasons for the taking of the deposition in the first instance exist at the time of hearing.

(2) Other discovery. If appropriate to a just disposition of any issue in a hearing, the hearing examiner may allow discovery by any other appropriate procedure, such as by written interrogatories upon a party, production of documents by a party, or by entry for inspection of the employment or place of employment involved.

Section 19. Hearings.

(1) Order of proceeding. Except as ordered otherwise by the hearing examiner, the party applicant for relief shall proceed first at a hearing.

(2) Burden of proof. The party applicant shall have the burden of proof.

(3) Evidence.

(a) Admissibility.

1. A party shall be entitled to present its case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct cross-examination as required for a full and true disclosure of the facts.

2. Any oral or documentary evidence may be received, but the hearing examiner shall exclude evidence that is irrelevant, immaterial, or unduly repetitious.

(b) Testimony of witnesses. The testimony of a witness shall be upon oath or affirmation administered by the hearing examiner.

(c) Objections.

a. If a party objects to the admission or rejection of any evidence, to the limitation of the scope of any examination or cross-examination, or to the failure to limit the scope, it shall state briefly the grounds for the objection.

b. Rulings on all objections shall appear in the record.

2. Only objections made before the hearing examiner shall be relied upon subsequently in a proceeding.

(d) Exceptions. Formal exception to an adverse ruling shall not be required.

(4) Official notice. Official notice may be taken of any material fact not appearing in evidence in the record, which is among the traditional matters of judicial notice or concerning which the Division of Occupational Safety and Health Compliance by reason of its functions is presumed to be expert if the parties shall be given adequate notice, at the hearing or by reference in the presiding hearing examiner's decision, of the matters so noticed, and shall be given adequate opportunity to show the contrary.

(5) Transcript.

(a) Hearings shall be transcribed.

(b) Copies of the transcript may be obtained by the parties upon written application filed with the reporter, and upon the payment of fees at the rate provided in the agreement with the reporter.

Section 20. Decisions of Hearing Examiner.

(1) Proposed findings of fact, conclusions, and orders.

(a) Within ten (10) calendar days after receipt of notice that the transcript of the testimony has been filed or such additional time as the hearing examiner may allow, each party may file with the hearing examiner proposed findings of fact, conclusions of law, or order, together with a supporting brief expressing the reasons for the proposals.

(b) The proposals and briefs shall be served on all parties and shall cite to all portions of the record and to all authorities relied upon in support of each proposal.

(2) Decision of the hearing examiner. Within a reasonable time after the time allowed for the filing of proposed findings of fact, conclusions of law, and order, the hearing examiner shall make and serve her or his decision upon each party, which shall become final on the 20th calendar day after service thereof, unless exceptions are filed thereto, as established in this administrative regulation. The decision of the hearing examiner shall include:

(a) A statement of findings and conclusions, with reasons and bases therefore, upon each material issue of fact, law, or discretion presented on the record; and

(b) The appropriate order, relief, or denial thereof.

(3) The decision of the hearing examiner shall be based upon a consideration of the whole record, state all facts officially noticed and relied upon, and based on a preponderance of reliable and probative evidence.

Section 21. Exceptions.

(1) Within twenty (20) days after service of the hearing examiner's decision, any party may file with the hearing examiner written exceptions thereto with supporting reasons.

(2) Exceptions shall refer to the specific findings of fact, conclusions of law, or terms of the order excepted to, the specific pages of transcript relevant to the suggestions, and shall suggest corrected findings of fact, conclusions of law, or terms of the order.

(3) Upon receipt of any exceptions, the hearing examiner shall establish a time for filing any objections to the exceptions and any supporting reasons.

Section 22. Transmission of Record.

(1) If exceptions are filed, the hearing examiner shall transmit the record of the proceeding to the commissioner for review.

(2) The record shall include:

(a) The application;

(b) Any request for hearing thereon;

(c) Motions and requests filed in written form;

(d) Rulings;

(e) The transcript of the testimony taken at the hearing, together with the exhibits admitted in evidence;

(f) All documents or papers filed in connection with prehearing conference;

(g) Proposed findings of fact, conclusions of law, orders, and supporting reasons; and,

(h) The hearing examiner's decision, and exceptions, statements of objections, and briefs in support thereof.

Section 23. Decision of the Commissioner.

(1) If exceptions to a decision of a hearing examiner are taken pursuant to this administrative regulation, the commissioner shall upon consideration thereof, together with the record references and authorities cited in support thereof, and any objections to exceptions and supporting reasons, make her or his decision.

(2) The decision shall affirm, modify, or set aside, in whole or part, the findings, conclusions, and the order contained in the decision of the presiding hearing examiner, and shall include a statement of reasons or bases for the actions taken on each exception presented.

Section 24. Motion for Summary Decision.

(1)

(a) Any party may, at least twenty (20) days before the date established for any hearing pursuant to this administrative regulation, move with or without supporting affidavits for a summary decision in his or her favor on all or any part of the proceeding.

(b) Any other party may, within ten (10) days after service of the motion, serve opposing affidavits or countermove for summary decision.

(c) The presiding examiner may, in her or his discretion, set the matter for argument and call for the submission of briefs.

(2) The filing of any documents pursuant to this section shall be with the hearing examiner, and copies of any documents shall be served in accordance with this administrative regulation.

(3)

(a) The hearing examiner shall grant the motion if the pleadings, affidavits, material obtained by discovery or otherwise obtained, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision.

(b) The hearing examiner may deny a motion if the moving party denies access to information by means of discovery to a party opposing the motion.

(4)

(a) Affidavits shall state facts as would be admissible in evidence in a Kentucky court of law and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

(b) If a motion for summary decision is made and supported as provided in this section, a party opposing the motion shall not rest upon the mere allegations or denials of this pleading; her or his response shall state specific facts showing that there is genuine issue of fact for the hearing.

(5) If the affidavits of a party opposing the motion cannot present facts essential to justify the party's opposition, the hearing examiner may deny the motion for summary decision, order a continuance to allow affidavits to be obtained or discovery to be had, or make other order as is just.

(6) The denial of all or any part of a motion for summary decision by the hearing examiner shall not be subject to interlocutory appeal to the commissioner unless the hearing examiner certified in writing that:

(a) The ruling involves an important question of law or policy as to which there is substantial ground for difference of opinion; and

(b) An immediate appeal from the ruling may materially advance the ultimate termination of the proceeding.

(7) The allowance of an interlocutory appeal shall not stay the proceeding before the hearing examiner unless the commissioner shall so order.

Section 25. Summary Decision.

(1) No genuine issue of material fact.

(a) If no genuine issue of material fact is found to have been raised, the hearing examiner may issue an initial decision to become final twenty (20) days after service thereof, unless, within that period of time any party files written exceptions to the decision.

(b) If any timely exception is filed, the hearing examiner shall fix a time for filing any supporting reasons.

(c) Thereafter, the commissioner, after consideration of the exceptions and any supporting briefs filed therewith and of any objections to the exceptions and any supporting reasons, may issue a final decision.

(d) An initial decision and a final decision shall include a statement of:

1. Findings and conclusions, and the reasons or bases thereof, on all issues presented; and

2. The terms and conditions of the order made.

(2) Hearings on issues of fact, if a genuine material question of fact is raised, the hearing examiner shall, and in any other case may, set the case for an evidentiary hearing in accordance with this administrative regulation.

Section 26. Effect of Appeal of a Hearing Examiner's Decision. A hearing examiner's decision shall not be final pending a decision on appeal by the commissioner.

Section 27. Finality for Purposes of Judicial Review. A decision by the commissioner shall be deemed final agency action for purposes of judicial review.

History

• RELATES TO: KRS 338.081, 338.153
• STATUTORY AUTHORITY: KRS 333.051, 338.0161
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes proceedings to grant variances and other relief pursuant to KRS Chapter 338.
• History: OSH 115; 1 Ky.R. 163; eff. 12-11-1974; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 2670; 48 Ky.R. 810; eff. 11-30-2021; TAm eff. 11-10-2022.

803 KAR 2:181 Recordkeeping and reporting occupational injuries and illnesses {#sec-803-kar-2-181 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:181}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Secretary of Labor" means the Secretary of the United States Department of Labor or the Secretary of the Education and Labor Cabinet.

(5) "Section 11(c) of the Act" means KRS 338.121(3).

Section 2. Except as modified by the definitions in Section 1, an employer shall comply with 29 C.F.R. Part 1904, Recording and Reporting Occupational Injuries and Illnesses, published by the Office of the Federal Register, National Archives and Records Administration.

History

• RELATES TO: KRS 338.015(1), (2), 338.121(3), 338.161, 29 C.F.R. Part 1904
• STATUTORY AUTHORITY: KRS 338.061, 338.161
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.161(1) requires the Department of Workplace Standards to promulgate administrative regulations for the collection, compilation, and analysis of occupational safety and health statistics. 29 C.F.R. Part 1904 authorizes requirements for the recording and reporting of occupational illnesses and injuries. This administrative regulation establishes recordkeeping and reporting requirements for employers pursuant to KRS Chapter 338.
• History: 803 KAR 002:181. 47 Ky.R. 2772; eff. 11-30-2021; TAm eff. 11-10-2022; 52 Ky.R. 312; eff. 2-3-2026.

803 KAR 2:220 Refusal to work when dangerous condition exist {#sec-803-kar-2-220 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:220}

Section 1. Definitions.

(1) "Employee" is defined by KRS 338.015(2).

(2) "Employer" is defined by KRS 338.015(1).

Section 2. Employee Refusal to Work.

(1) If an employee is confronted with a choice between not performing assigned tasks or being subjected to death, serious injury, or illness arising from a dangerous condition at the workplace, the employee may refuse in good faith to expose herself or himself to the dangerous condition.

(2) The condition causing the employee's apprehension of death, serious injury, or serious illness shall be of a nature that a reasonable person under the same or similar circumstances confronting the employee would conclude there is a real danger of death, serious injury, or serious illness and there is insufficient time, due to the urgency of the situation, to eliminate the danger through regular statutory enforcement channels.

(3) Additionally, the employee, if possible, shall have sought corrective action from her or his employer and was unable to obtain correction of the dangerous condition.

(4) If an employee in good faith refuses to expose herself or himself to a dangerous condition at the workplace, the employee shall not be subjected to subsequent discrimination by the employer.

(5) The provisions of this administrative regulation shall not apply if an employee acted unreasonably or in bad faith.

History

• RELATES TO: KRS 338.121(3)(a)
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes requirements regarding employee refusal to work when a dangerous condition exists.
• History: 9 Ky.R. 89; eff. 8-11-1982; Recodified from 803 KAR 2:190, eff. 4-19-84; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 2684; 48 Ky.R. 815; eff. 11-30-2021.

803 KAR 2:230 Pay during inspection activity {#sec-803-kar-2-230 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:230}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 338.015.

(2) "Compliance officer" means a person authorized by the commissioner to conduct occupational safety and health inspections.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

Section 2.

(1) Employees, when on regular duty time, shall be paid their regular rate of pay during the conduct of the walkaround inspection and other inspection related activities such as responding to compliance officer questions and participating in an opening and closing conference.

(2) An employer's failure to pay employees for time engaged in inspection activity is discriminatory pursuant to KRS 338.121(3).

History

• RELATES TO: KRS 338.111, 338.121(3)
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes employee payment during inspection activity.
• History: 5 Ky.R. 833; 1067; eff. 6-6-1979; Recodified from 803 KAR 2:092, eff. 4-19-84; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 2685; eff. 11-30-2021.

803 KAR 2:250 Discrimination {#sec-803-kar-2-250 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:250}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 338.015(7).

(2) "Complainant" means any person who makes a "complaint" as defined by subsection (3) of this section.

(3) "Complaint" means any oral or written communication related to an occupational safety and health concern made by an employee to an employer, governmental agency, or made to the commissioner or the commissioner's designee.

(4) "Review commission" is defined by KRS 338.015(8).

(5) "Secretary" is defined by KRS 338.015(12).

(6) "Working days":

(a) Means Monday through Friday; and

(b) Does not mean Saturday, Sunday, federal or state holidays, or the day of receipt of notice.

Section 2. Complaint.

(1) An employee or former employee may file an oral or written complaint with the commissioner or commissioner's designee alleging discrimination.

(2) A complaint shall be filed no more than thirty (30) days from the occurrence of the alleged discriminatory activity.

(3) A complaint shall provide the name and address of the complainant, name and address of employer, date, and description of alleged discrimination.

(4) The commissioner or commissioner's designee shall provide the employer notification of the complaint upon initiation of an investigation.

Section 3. Settlement.

(1) Settlement shall be encouraged at any stage of the proceedings if the settlement is consistent with KRS Chapter 338.

(2) Primary consideration shall be the reinstatement of a complainant to his or her former position with back pay and assurance of the future protection of the rights of all employees pursuant to KRS Chapter 338.

Section 4. Withdrawal of Complaint to the Commissioner.

(1) A request by the complainant to withdraw a complaint filed with the commissioner shall be given careful consideration and substantial weight.

(2) The commissioner or commissioner's designee shall make the final determination if a complaint and subsequent investigation will be withdrawn and terminated.

Section 5. Arbitration or Other Agency Proceedings.

(1) A complainant may pursue grievance arbitration proceedings in collective bargaining agreements while requesting relief from other agencies such as the National Labor Relations Board.

(2) The commissioner's jurisdiction to receive KRS 338.121(3) complaints, to investigate, and to determine if discrimination occurred shall be independent of the jurisdiction of other agencies or bodies.

(3) The commissioner or commissioner's designee may investigate and issue citations against any party found in violation regardless of the pendency or determination of other proceedings.

(4) If a complainant is pursuing remedies other than those established by KRS 338.121, the commissioner's determination shall be postponed.

Section 6.

(1) Investigation.

(a) Upon receipt of a complaint, the commissioner or commissioner's designee may initiate an investigation.

(b) The investigation shall be completed and the commissioner's determination issued within ninety (90) days, absent extenuating circumstances.

(2) Citation.

(a) If the commissioner finds a violation of KRS 338.121, he or she shall issue a citation, with delivery or receipt confirmation, and recommend a penalty pursuant to KRS 338.991.

(b) The citation shall include a determination by the commissioner as to the merits of the alleged violation.

(c) The commissioner or commissioner's designee shall provide notice of the determination to all affected parties.

(d) The citation shall state that it shall be deemed the final order of the review commission and not subject to review by any court or agency, as established by KRS 338.141, unless, within fifteen (15) working days from the date of receipt of the notice, the employer notifies the commissioner in writing that the employer intends to contest the citation before the review commission.

(e) The commissioner shall immediately transmit a notice to contest to the review commission in accordance with the rules of procedure established by the commission in accordance with KRS 338.071.

(3) Penalty.

(a) The commissioner shall determine the amount of a proposed penalty, based on the appropriateness of the penalty with respect to the:

1. Size of the business of the employer being charged,

2. Gravity of the violation,

3. Good faith of the employer, and

4. History of previous violations.

(b) Penalties shall be proposed with respect to an alleged discriminatory act even if the employer immediately abates, or initiates steps to abate, the alleged violation.

(4)

(a) If the commissioner determines there has not been discriminatory action, the complainant shall be notified of the complainant's rights of review.

(b)

1. The complainant may petition the secretary for a review of the determination.

2. The petition shall be in writing and state reasons why the review is requested.

(c) The secretary shall affirm the determination or remand it to the commissioner for further investigation.

History

• RELATES TO: KRS 338.015, 338.071, 338.121, 338.141, 338.991
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes the procedure for discrimination complaints pursuant to KRS 338.121.
• History: 803 KAR 002:250. 13 Ky.R. 1398; eff. 2-10-1987; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 42 Ky.R. 113, 682; eff. 10-2-2015; 47 Ky.R. 2687; 48 Ky.R. 816; eff. 11-30-2021; 52 Ky.R. 314, 743; eff.2-3-2026.) COMPILER'S NOTE: 2025 RS HB 6, enacted by the General Assembly on March 27, 2025, altered the information to be provided at the time an administrative regulation is filed. Aside from formatting changes necessary to upload the regulation into the LRC's publication application, this regulation has been published as submitted by the agency.

803 KAR 2:260 Appeal procedure {#sec-803-kar-2-260 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:260}

Section 1. Definitions.

(1) "Commissioner" is defined by KRS 338.015(7).

(2) "Fees and other expenses" means reasonable expenses of expert witnesses; the reasonable cost of any study, analysis, engineering report, test, or project found by the court to be necessary for the preparation of the party's case; and reasonable attorney fees.

(3) "Small business" or "small entity" means:

(a) An individual whose net worth did not exceed $2,000,000 at the time the adversary adjudication was initiated; or

(b) Any owner of an unincorporated business or any, partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the adversary adjudication was initiated, and which had not more than 500 employees at the time the adversary adjudication was initiated; except that an organization described in Internal Revenue Code of 1986, 26 U.S.C., Section 501(c)(3), which is exempt from taxation under 26 U.S.C., Section 501(a), or a cooperative association as established in the Agricultural Marketing Act, 7 U.S.C. Chapter 38, may be a party regardless of the net worth of the organization or cooperative association. For purposes of 5 U.S.C. 504(a)(4), "party" also includes a "small entity.".

(4) "Small organization" or "small entity" means any not-for-profit enterprise that is independently owned and operated and is not dominant in its field, unless an agency establishes, after opportunity for public comment, one (1) or more definitions of the term, as appropriate to the activities of the agency, and publishes the definition or definitions in the Federal Register.

(5) "Party" is defined by 5 U.S.C. 551(3) and includes a small business, small organization, and small entity.

Section 2. Fees and Other Expenses; Qualification and Limits. The amount of fees awarded shall be based on prevailing market rates for the kind and quality of the services provided, except:

(1) An expert witness shall not be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the commissioner; and

(2) Attorney fees shall not be awarded in excess of $125 per hour unless the Franklin Circuit Court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.

Section 3. Complaint.

(1) A party seeking an award under KRS 338.091 shall file a complaint with the Franklin Circuit Court within thirty (30) days after the final disposition of the adversary adjudication.

(2) The complaint shall:

(a) Identify the party and the proceeding for which an award is sought;

(b) Show that the complainant has prevailed;

(c)

1. Identify the position of the commissioner that the party alleges was not substantially justified; or

2. If the party has not prevailed, show that the commissioner's demand was substantially in excess of the decision of the judge or commission and was unreasonable compared with that decision under the facts and circumstances of that case;

(d) Identify the commissioner's position or positions in the proceeding that the party alleges was or were not substantially justified or the commissioner's demand that is alleged to be excessive and unreasonable;

(e) Unless the party is an individual, state the number of employees of the complainant and briefly describe the type and purpose of its organization or business;

(f) Show that the party meets the definition of party, including adequate documentation of net worth, as established in 29 C.F.R. 2204.302;

(g) State the amount of fees and expenses for which an award is sought, as established in 5 U.S.C. 504(b)(1)(A), with adequate documentation as set forth in 29 C.F.R. 2204.303;

(h) Be signed by the complainant or an authorized officer, attorney, or agent of the complainant; and

(i) Contain or be accompanied by a written verification under penalty of perjury that the information provided in the complaint is true and correct.

(3) Each complainant except a qualified tax-exempt organization; cooperative association; or, in the case of a complaint for an award related to an allegedly excessive demand by the commissioner, a small entity, shall provide with its complaint, a detailed exhibit showing the net worth of the complainant as required by 29 C.F.R. 2204.301(c) when the proceeding was initiated.

(a) The exhibit may be in any form convenient to the complainant that provides full disclosure of the complainant's assets and liabilities and shall be sufficient to determine if the complainant qualifies as a party.

(b) The Franklin Circuit Court could require a complainant to file additional information to determine its eligibility for an award.

(4)

(a) Except as established in paragraph (b) of this subsection, the net worth exhibit shall be included in the public record of the proceeding.

(b) If a complainant objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure, the complainant shall request that the documents be filed under seal or otherwise be treated as confidential, pursuant to 29 C.F.R. 2200.8 and 29 C.F.R. 2200.52.

(5)

(a) The complaint shall be accompanied by adequate documentation of the fees and other expenses incurred after the initiation of the adversary adjudication, including the reasonable cost of any study, analysis, engineering report, test, or project.

(b) A complainant seeking an increase in fees to account for inflation pursuant to 29 C.F.R. 2204.406 shall also include adequate documentation of the change in the consumer price index for the attorney or agent's locality.

(c) With respect to a claim for fees and expenses involving an excessive demand by the commissioner, the complaint shall be accompanied by adequate documentation of fees and expenses incurred after initiation of the adversary adjudication for which an award is sought attributable to the portion of the demand alleged to be excessive and unreasonable.

(d) A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the complaint, showing the hours spent in connection with the proceeding by each individual, a description of the specific services performed, the rate at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the complainant or by any other person or entity for the services provided.

(e) The Franklin Circuit Court could require the complainant to provide vouchers, receipts, or other substantiation for any fees or expenses claimed.

(6) Any complaint for an award, or any accompanying documentation related to a complaint shall be filed and served on all parties to the proceeding in accordance with 29 C.F.R. 2200.7 and 29 C.F.R. 2200.8, except as provided in 29 C.F.R. 2204.302(b) for confidential financial information.

(7) Within twenty (20) days after service of a complaint, the commissioner shall file an answer to the complaint. Unless the commissioner requests an extension of time for filing or files a statement of intent to negotiate, failure to file an answer within the twenty (20) day period may be treated as a consent to the award requested

(8)

(a) If the commissioner and the complainant believe that the issues in the fee complaint can be settled, they may jointly file a statement of their intent to negotiate a settlement.

(b) The filing of this statement shall extend the time for filing an answer for an additional thirty (30) days.

(c) Further extensions could be granted by the Franklin Circuit Court upon request.

(9)

(a) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of the commissioner's position.

(b) If the answer is based on any alleged facts not already in the record of the proceeding, the commissioner shall include with the answer either supporting affidavits or a request for further proceedings under 29 C.F.R. 2204.405.

(10)

(a) Within fifteen (15) days after service of an answer, the complainant may file a reply.

(b) If the reply is based on any alleged facts not already in the record of the proceeding, the complainant shall include with the reply, either supporting affidavits or a request for further proceedings under 29 C.F.R. 2204.405.

History

• RELATES TO: KRS 338.091, 29 C.F.R. 2200.52, 2200.7, 2200.8, 2204.302, 2204.303, 2204.405, 2204.406, 5 U.S.C. 504(b)(1)(A), 601, 7 U.S.C. Chapter 38, 26 U.S.C. 501(a), 501(c)(3), 28 U.S.C. 2412
• STATUTORY AUTHORITY: KRS 338.051, 338.061, 338.091
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chair to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes appeal procedures pertaining to occupational safety and health standards complaints and related actions .
• History: 803 KAR 002:260. 52 Ky.R. 335, 744; eff. 2-3-2026.) COMPILER'S NOTE: 2025 RS HB 6, enacted by the General Assembly on March 27, 2025, altered the information to be provided at the time an administrative regulation is filed. Aside from formatting changes necessary to upload the regulation into the LRC's publication application, this regulation has been published as submitted by the agency.

803 KAR 2:300 General {#sec-803-kar-2-300 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:300}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "Assistant secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "C.F.R." means Code of Federal Regulations.

(4) "Employee" is defined by KRS 338.015(2).

(5) "Employer" is defined by KRS 338.015(1).

(6) "Established federal standard" is defined by KRS 338.015(10).

(7) "National consensus standard" is defined by KRS 338.015(9).

(8) "Secretary of Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(9) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

(10) "U.S. Department of Labor" means U.S. Department of Labor or Kentucky Education and Labor Cabinet, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601.

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, general industry shall comply with the federal requirements published by the Office of the Federal Register, National Archives and Records Administration29 C.F.R. 1910.3-1910.7 and 1910.9.

History

• RELATES TO: KRS 338.015, 29 C.F.R. 1910.3-1910.7, 1910.9
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman of the board to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. 29 C.F.R. 1910.3-1910.7 and 1910.9 establish occupational safety and health standards found to be national consensus standards or established federal standards. This administrative regulation establishes the general standards enforced by the Department of Workplace Standards in general industry.
• History: 803 KAR 002:300. 16 Ky.R. 683; eff. 12-15-1989; Am. 2684; eff. 5-11-1994; 23 Ky.R. 1687; eff. 12-13-1996; 26 Ky.R. 643; 1004; eff. 11-15-1999; 33 Ky.R. 1712; 2299; eff. 3-9-2007; 3499; 34 Ky.R. 28; eff. 8-6-2007; 35 Ky.R. 1287; 1753; eff. 3-6-2009; 36 Ky.R. 160; 586; eff. 10-2-2009; 1529; 2064-M; eff. 4-2-2010, 37 Ky.R. 144; 721; eff. 10-1-2010; 38 Ky.R. 2016; eff. 8-31-2012; 40 Ky.R. 138; eff. 10-4-2013; 2823; eff. 9-5-2014; 42 Ky.R. 2953; eff. 9-2-2016; 43 Ky.R. 1265; eff. 3-31-2017; 46 Ky.R. 2702; eff. 9-29-2020; TAm eff. 11-10-2022; 51 Ky.R. 1320; eff. 7-1-2025.

803 KAR 2:301 Federal standards for general industry {#sec-803-kar-2-301 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:301}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "Assistant secretary" means the Secretary of Education and Labor, Commonwealth of Kentucky or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

(4) "U.S. Department of Labor" means Kentucky Education and Labor Cabinet, Department of Workplace Standards, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601, or the U.S. Department of Labor.

Section 2. Except as modified by Section 1 of this administrative regulation, general industry shall comply with the federal requirements published by the Office of the Federal Register, National Archives and Records Services, General Services Administration; 29 C.F.R. 1910 Subpart B, Adoption and Extension of Established Federal Standards.

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1910 Subpart B
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 683; eff. 12-15-89; 19 Ky.R. 1887; eff. 4-7-93; 20 Ky.R. 2685; eff. 5-11-94; 21 Ky.R. 2250; eff. 4-20-95; 23 Ky.R. 1689; eff. 12-13-96; 3925; eff. 7-17-97; 24 Ky.R. 1148; eff. 1-12-98; 2152; eff. 7-13-98; 26 Ky.R. 645; 1004; eff. 11-15-99; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 46 Ky.R. 2827; 47 Ky.R. 316; eff. 11-4-2020; TAm eff. 11-10-2022.

803 KAR 2:303 Walking-working surfaces {#sec-803-kar-2-303 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:303}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "Assistant Secretary of Education and Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "C.F.R." means Code of Federal Regulations.

(4) "Employee" is defined by KRS 338.015(2).

(5) "Employer" is defined by KRS 338.015(1).

(6) "Established federal standard" is defined by KRS 338.015(10).

(7) "National consensus standard" is defined by KRS 338.015(9).

(8) "Secretary of Education and Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(9) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

(10) "U.S. Department of Labor" means U.S. Department of Labor or Kentucky Education and Labor Cabinet, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601.

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, general industry shall comply with the following federal regulations published by the Office of the Federal Register, National Archives and Records Administration:

(1) 29 C.F.R Subpart D, 1910.21-1910.30, revised July 1, 2015; and

(2) The revisions to Subpart D as published in the November 18, 2016 Federal Register, Volume 81, Number 223.

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1910.21-1910.30
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061, 29 C.F.R. 1910.21-1910.30
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) and 338.061 authorize the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations. KRS 338.051(3) authorizes the chairman of the board to adopt established federal standards without board approval if necessary to meet federal time requirements. This administrative regulation establishes standards for walking-working surfaces to be enforced by the Division of Occupational Safety and Health Compliance in the area of general industry.
• History: 16 Ky.R. 685; eff. 12-15-1989; 17 Ky.R. 1842; eff. 1-6-1991; 23 Ky.R. 1692; eff. 12-13-1996; TAm eff. 8-9-2007; TAm eff. 9-8-2011; TAm eff. 8-16-2013; 43 Ky.R. 1267, 1562; eff. 3-31-2017; TAm eff. 11-10-2022; Cert eff. 3-28-2024.

803 KAR 2:304 Exit routes and emergency planning {#sec-803-kar-2-304 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:304}

Section 1. Definitions.

(1) "Employee" is defined by KRS 338.015(2).

(2) "Employer" is defined by KRS 338.015(1).

(3) "NFPA" means the National Fire Protection Association.

(4) "OSHA" means the Occupational Safety and Health Administration or the Kentucky Education and Labor Cabinet, Division of Occupational Safety and Health.

(5) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, general industry shall comply with the federal regulations published by the Office of the Federal Register, National Archives and Records Administration, 29 C.F.R. 1910 Subpart E, Adoption and Extension of Established Federal Standards.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1910.33-1910.39
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes exit route, emergency action plan, and fire prevention plan standards that are enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 686; eff. 12-15-1989; 20 Ky.R. 2686; eff. 5-11-1994; 23 Ky.R. 1694; eff. 12-13-1996; 30 Ky.R. 705; eff. 12-5-2003; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 38 Ky.R. 95; 596; eff. 10-7-2011; TAm eff. 7-12-2012; 46 Ky.R. 2828; 47 Ky.R. 317; eff. 11-4-2020; TAm eff. 11-10-2022.

803 KAR 2:305 Powered platforms, manlifts, and vehicle-mounted work platforms {#sec-803-kar-2-305 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:305}

Section 1. Definitions.

(1) "Assistant Secretary of Education and Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, general industry shall comply with the following federal requirements published by the Office of the Federal Register, National Archives and Records Services, General Services Administration:

(1) 29 C.F.R. 1910.66-1910.68 and Appendices, effective July 1, 2016; and

(2) The amendments to 29 C.F.R. 1910.67 as published in the November 18, 2016 Federal Register, Volume 81, Number 223.

History

• RELATES TO: KRS 338.015(1), (2), 338.051, 338.061, 29 C.F.R. 1910.66-1910.68
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman of the board to adopt established federal standards without board approval if necessary to meet federal time requirements. 29 C.F.R. 1910.66-1910.68 authorizes federal requirements relating to powered platforms, manlifts, and vehicle-mounted work platforms. This administrative regulation establishes the powered platforms, manlifts, and vehicle-mounted work platform standards to be enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 686; eff. 12-15-1989; 1697; eff. 4-12-1990; 17 Ky.R. 1843; eff. 1-6-1991; 23 Ky.R. 1696; eff. 12-13-1996; 33 Ky.R. 3501; 34 Ky.R. 29; eff. 8-6-2007; 35 Ky.R. 1289; 1754; eff. 3-6-2009; TAm eff. 7-12-2012; 42 Ky.R. 116, 683; eff. 10-2-2015; 43 Ky.R. 1269; eff. 3-31-2017; TAm eff. 11-10-2022; Cert eff. 3-28-2024.

803 KAR 2:307 Hazardous materials {#sec-803-kar-2-307 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:307}

Section 1. Definitions.

(1) "Assistant secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

(5) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation and the requirements established in Section 3 of this administrative regulation, general industry shall comply with the following federal requirements published by the Office of the Federal Register, National Archives and Records Services, General Services Administration:

(1) 29 C.F.R. 1910.101-1910.126, revised July 1, 2015; and

(2) The revisions to 29 C.F.R. 1910.106 as published in the March 1, 2016, Federal Register, Volume 81, Number 40.

Section 3. Automotive Service Station.

(1) The language in subsection (2) of this section shall apply in lieu of 29 C.F.R. 1910.106(a)(3).

(2) Automotive service station, or service station, shall include that portion of property where flammable or combustible liquids used as motor fuels are stored and dispensed from fixed equipment into the fuel tanks of motor vehicles and shall include any facilities available for the sale and service of tires, batteries, or accessories, and for minor automotive maintenance work, and shall also include private stations not accessible or open to the public such as those used by commercial, industrial, or governmental establishments. This section shall not apply to agriculture.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1910.101-1910.126
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations necessary to accomplish the purposes of KRS Chapter 338. 29 C.F.R. 1910.101-1910.126 establishes federal requirements relating to hazardous materials. This administrative regulation establishes hazardous materials standards to be enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 689; eff. 12-15-1989; 17 Ky.R. 1847; eff. 1-6-1991; 18 Ky.R. 1944; eff. 2-7-1992; 3528; eff. 7-23-1992; 19 Ky.R. 2734; eff. 8-6-1993; 20 Ky.R. 2689; eff. 5-11-1994; 21 Ky.R. 2252; eff. 4-20-1995; 23 Ky.R. 1702; eff. 12-13-1996; 25 Ky.R. 1153; eff. 1-19-1999; 2441; eff. 6-16-1999; 26 Ky.R. 649; 1006; eff. 11-15-1999; 30 Ky.R. 708; eff. 12-5-2003; 31 Ky.R. 1587; 1816; eff. 5-26-2005; 33 Ky.R. 1714; 2299; eff. 3-9-2007; 35 Ky.R. 1294; 1756; eff. 3-6-2009; 36 Ky.R. 1531; 2065-M; eff. 4-2-2010; 38 Ky.R. 2018; eff. 8-31-2012; 40 Ky.R. 140; 544; eff. 10-4-2013; 42 Ky.R. 2955; 43 Ky.R. 209; eff. 9-2-2016; TAm eff. 11-10-2022; Crt eff. 8-31-2023.

803 KAR 2:308 Personal protective equipment {#sec-803-kar-2-308 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:308}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "National consensus standard" is defined by KRS 338.015(9).

(5) "Standard" is defined by KRS 338.015(3).

Section 2. Except as established by the definitions in Section 1 of this administrative regulation, general industry shall comply with 29 C.F.R. 1910 Subpart I, Personal Protective Equipment published by the Office of the Federal Register, National Archives and Records Administration and the revisions to 29 C.F.R. 1910.134 Appendix A published in the September 26, 2019 Federal Register, Volume 84, Number 187.

History

• RELATES TO: 29 C.F.R. 1910.132-1910.140
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health regulations and authorizes the chairman to reference federal standards without approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 690; eff. 12-15-1989; Am. 20 Ky.R. 2691; eff. 5-11-1994; 21 Ky.R. 109; eff. 9-12-1994; 2254; eff. 4-20-1995; 23 Ky.R. 1705; eff. 12-13-1996; 3929; eff. 7-17-1997; 25 Ky.R. 1155; eff. 1-19-1999; 31 Ky.R. 224; 568; eff. 9-15-2004; 31 Ky.R. 224; 568; 1589; 1816; eff. 5-26-2005; 33 Ky.R. 3050; eff. 6-1-2007; 34 Ky.R. 2044; 2285; eff. 5-2-2008; 36 Ky.R. 165; 587; eff. 10-2-2009; 37 Ky.R. 149; 10-1-2010; 38 Ky.R. 97; eff. 10-7-2011; 40 Ky.R. 142; eff. 10-4-2013; 2828; eff. 9-5-2014; 42 Ky.R. 2957; eff. 9-2-2016; 43 Ky.R. 1271, 1562; eff. 3-31-2017; 47 Ky.R. 2692; eff. 11-30-2021.

803 KAR 2:309 General environmental controls {#sec-803-kar-2-309 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:309}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as established by Section 3 of this administrative regulation, general industry shall comply with 29 C.F.R. 1910, Subpart J, General Environmental Controls, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

Section 3.

(1)

(a) Lockout. The requirements in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1910.147(c)(2)(ii).

(b) If an energy isolating device is capable of being locked out, the employer's energy control program under 29 C.F.R. 1910.147(c)(1) shall utilize lockout.

(2)

(a) Full employee protection. The requirements in paragraphs (b) and (c) of this subsection shall apply in lieu of 29 C.F.R. 1910.147(c)(3)(i).

(b) If a tagout device is used on an energy isolating device that is incapable of being locked out, the tagout device shall be attached at the same location that the lockout device would have been attached and the employer shall demonstrate that the tagout program shall provide a level of safety equivalent to that obtained by using a lockout program.

(c) If a tagout device is used with an energy isolating device that is incapable of being locked out, the tagout device shall be fastened at the same point at which the lock would have been attached.

History

• RELATES TO: KRS 338.051(3), 338.061, 29 C.F.R. 1910.141-1910.147
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 692; eff. 12-15-1989; Am. 1698; 2138; eff. 4-12-1990; 17 Ky.R. 3509; eff. 8-2-91; 20 Ky.R. 640; eff. 11-8-93; 2693; eff. 5-11-94; 21 Ky.R. 112; eff. 9-12-94; 23 Ky.R. 1708; eff. 12-13-96; 25 Ky.R. 2443; eff. 6-16-99; 26 Ky.R. 651; 1007; eff. 11-15-99; 32 KAR 546; 871; eff. 12-2-2005; 33 Ky.R. 1717; 2300; eff. 3-9-07; 35 Ky.R. 1296; 1756; eff. 3-6-09; 38 Ky.R. 99; 597; eff. 10-7-11; 38 Ky.R. 2021; eff. 8-31-2012; 40 Ky.R. 2830; eff. 9-5-2014; 47 Ky.R. 1626, 2374; eff. 8-3-2021.

803 KAR 2:310 Medical services and first aid {#sec-803-kar-2-310 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:310}

Section 1. Definitions.

(1) "Employee" is defined by KRS 338.015(2).

(2) "Employer" is defined by KRS 338.015(1).

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, general industry shall comply with the federal requirements published by the Office of the Federal Register, National Archives and Records Services, General Services Administration; 29 C.F.R. 1910 Subpart K, Adoption and Extension of Establishes Federal Standards.

History

• RELATES TO: KRS 338
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. This administrative regulation establishes medical services and first aid standards that are enforced by the Department of Workplace Standards in general industry.
• History: 803 KAR 002:310. 16 Ky.R. 693; eff. 12-15-1989; 19 Ky.R. 2736; 20 Ky.R. 367; 511; eff. 9-3-1993; 25 Ky.R. 2445; eff. 6-16-1999; 32 Ky.R. 548; 872; eff. 12-2-2005; 34 Ky.R. 1210; 1737; eff. 2-1-2008; TAm eff. 9-8-2011; 47 Ky.R. 2695; eff. 11-30-2021; TAm eff. 11-10-2022; 52 Ky.R. 317; eff. 3-3-2026.

803 KAR 2:311 Fire protection {#sec-803-kar-2-311 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:311}

Section 1. Definitions.

(1) "Assistant secretary" means the Secretary of Education and Labor, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "OSHA" means the Occupational Safety and Health Administration or the Kentucky Occupational Safety and Health Program.

(5) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, general industry shall comply with the federal requirements published by the Office of the Federal Register, National Archives and Records Services, General Services Administration; 29 C.F.R. 1910 Subpart L, Adoption and Extension of Established Federal Standards.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1910.155-1910.165
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes fire protection standards that are enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 694; eff. 12-15-1989; 20 Ky.R. 2694; eff. 5-11-1994; 23 Ky.R. 1711; eff. 12-13-1996; 25 Ky.R. 1158; eff. 1-19-1999; 2447; eff. 6-16-1999; 30 Ky.R. 12-5-2003; TAm eff. 8-9-2007; 36 Ky.R. 167; 588; eff. 10-2-2009; TAm 7-12-2012; 46 Ky.R. 2830; 47 Ky.R. 317; eff. 11-4-2020; TAm eff. 11-10-2022.

803 KAR 2:312 Compressed gas and compressed air equipment {#sec-803-kar-2-312 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:312}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "Assistant secretary" means the Secretary of Education and Labor, Commonwealth of Kentucky or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

(5) "Established federal standard" means any operative occupational safety and health standard established by an agency of the United States Government.

(6) "National consensus standard" is defined by KRS 338.015(9).

(7) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as modified by the definitions in Section 1 and the requirements of Section 3 of this administrative regulation, general industry shall comply with the federal requirements published by the Office of the Federal Register, National Archives and Records Services, General Services Administration; 29 C.F.R. 1910 Subpart M, Compressed Gas and Compressed Air Equipment.

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1910.169
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes compressed gas and compressed air equipment standards that are enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 1098; eff. 12-15-1989; 20 Ky.R. 2696; eff. 5-11-1994; 23 Ky.R. 1713; eff. 12-13-1996; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 46 Ky.R. 2832, 47 Ky.R. 317; eff. 11-4-2020; TAm eff. 11-10-2022.

803 KAR 2:313 Materials handling and storage {#sec-803-kar-2-313 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:313}

Section 1. Definitions Applicable to this Part.

(1) "Act" means KRS Chapter 338.

(2) "Assistant Secretary of Education and Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "Standard" is defined by KRS 338.015(3).

(4) "U.S. Department of Labor" means the Kentucky Education and Labor Cabinet or the U.S. Department of Labor.

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, general industry shall comply with the following federal regulations published by the Office of the Federal Register, National Archives and Records Administration:

(1) 29 C.F.R. Subpart N, 1910.176 through 1910.184, revised July 1, 2016; and

(2) The revisions to Subpart N as published in the November 18, 2016 Federal Register, Volume 81, Number 223.

History

• RELATES TO: KRS 338.051(3), 338.061, 29 C.F.R. 1910.176-1910.184
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061, 29 C.F.R. 1910.176-1910.184
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) and 338.061 require the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations. KRS 338.051(3) authorizes the chairman of the board to adopt established federal standards without board approval if necessary to meet federal time requirements. This administrative regulation establishes standards for materials handling and storage to be enforced by the Division of Occupational Safety and Health Compliance in the area of general industry.
• History: 16 Ky.R. 695; eff. 12-15-1989; 17 Ky.R. 1849; eff. 1-6-1991; 20 Ky.R. 2697; eff. 5-11-1994; 23 Ky.R. 1714; eff. 12-13-1996; 25 Ky.R. 2448; eff. 6-16-1999; 26 Ky.R. 652; 1008; eff. 11-15-1999; TAm eff. 8-9-2007; 38 Ky.R. 101; 597; eff. 10-7-2011; 38 Ky.R. 2023; 39 Ky.R. 212; eff. 8-31-2012; 43 Ky.R. 1273, 1563; eff. 3-31-2017; TAm eff. 11-10-2022; Crt eff. 3-28-2024.

803 KAR 2:314 Machinery and machine guarding {#sec-803-kar-2-314 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:314}

Section 1. Definitions.

(1) "Assistant Secretary of Labor" means Secretary, Education and Labor Cabinet, Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined in KRS 338.015(2).

(4) "Employer" of defined by KRS 338.015(1).

(5) "National consensus standard" is defined in KRS 338.015(9).

(6) "Occupational safety and health standard" or "Standard" is defined by KRS 338.015(3).

(7) "U.S. Department of Labor" means U.S. Department of Labor or Kentucky Education and Labor Cabinet, Mayo-Underwood Building, 3rd Floor, 500 Mero Street, Frankfort, Kentucky 40601.

Section 2. Except as modified by the definitions in Section 1 and requirements in Section 3 of this administrative regulation, general industry shall comply with 29 C.F.R. 1910 Subpart O, Machinery and Machine Guarding published by the Office of the Federal Register, National Archives and Records Administration.

Section 3. Reporting Requirement. An employer required by this administrative regulation to report information to the United States Department of Labor, or any subsidiary thereof, shall instead report the information to the Kentucky Education and Labor Cabinet.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. Part 1910.211-219
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 696; eff. 12-15-1989; 23 Ky.R. 1716; eff. 12-13-1996; 31 Ky.R. 1591; 1817; eff. 5-26-2005; TAm eff. 9-8-2011; 40 Ky.R. 144; 544; eff. 10-4-2013; 2832; eff. 9-5-2014; 47 Ky.R. 1478, 2375; eff. 8-3-2021; TAm eff. 11-10-2022.

803 KAR 2:315 Hand and portable powered tools and other hand-held equipment {#sec-803-kar-2-315 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:315}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "Assistant secretary" means Secretary, Education and Labor Cabinet or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "C.F.R." means Code of Federal Regulations.

(4) "Employee" is defined by KRS 338.015(2).

(5) "Employer" is defined by KRS 338.015(1).

(6) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, general industry shall comply with the federal requirements published by the Office of the Federal Register, National Archives and Records Services, General Services Administration; Subpart P.

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1910.241-1910.244
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. 29 C.F.R. 1910.241 through 1910.244 establishes the federal requirements relating to hand and portable powered tools and other hand-held equipment. This administrative regulation establishes the hand and portable powered tools and other hand-held equipment standards that are enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 697; eff. 12-15-1989; 23 Ky.R. 1719; eff. 12-13-1996; 33 Ky.R. 1719; 2300; eff. 3-9-2007; 35 Ky.R. 1298; 1757; eff. 3-6-2009; TAm eff. 7-12-2012; 46 Ky.R. 2834, 47 Ky.R. 318; eff. 11-4-2020; TAm eff. 11-10-2022; 46 Ky.R. 2834; eff. 11-4-2020.

803 KAR 2:316 Welding, cutting, and brazing {#sec-803-kar-2-316 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:316}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "Assistant secretary" means Secretary of Education and Labor, Commonwealth of Kentucky, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "C.F.R." means Code of Federal Regulations.

(4) "Employee" is defined by KRS 338.015(2).

(5) "Employer" is defined by KRS 338.015(1).

(6) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

(7) "U.S. Department of Labor" means Kentucky Education and Labor Cabinet, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601, or the U.S. Department of Labor.

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, general industry shall comply with the federal requirements published by the Office of the Federal Register, National Archives and Records Services, General Services Administration 29 C.F.R. 1910.251-1910.255.

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1910.251-1910.255
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes the welding, cutting, and brazing standards that are enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 698; eff. 12-15-1989; 17 Ky.R. 1851; eff. 1-6-1991; 23 Ky.R. 1720; eff. 12-13-1996; 25 Ky.R. 1159; eff. 1-19-1999; 33 Ky.R. 1721; 2301; eff. 3-9-2007; 35 Ky.R. 1300; 1757; eff. 3-6-2009; 37 Ky.R. 151; eff. 10-1-2010; 38 Ky.R. 2025; eff. 8-31-2012; 46 Ky.R. 2834; 47 Ky.R. 318; eff. 11-4-2020; TAm eff. 11-10-2022.

803 KAR 2:317 Special industries {#sec-803-kar-2-317 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:317}

Section 1. Definitions.

(1) "Assistant Secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined in KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

(5) "Standard" is defined by KRS 338.015(3).

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, general industry shall comply with the following federal requirements published by the Office of the Federal Register, National Archives and Records Services, General Services Administration:

(1) 29 C.F.R. Subpart R, 1910.261-1910.272, effective July 1, 2016 and

(2) The revisions to Subpart R, as published in the November 18, 2016 Federal Register, Volume 81, Number 223.

History

• RELATES TO: KRS 338.015, 338.051(3), 338.061, 29 C.F.R. 1910.261-1910.272
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations necessary to accomplish the purposes of KRS Chapter 338 and authorizes the chairman of the board to adopt established federal standards without board approval if necessary to meet federal time requirements. 29 C.F.R. 1910.261 to 1910.272 authorize the federal requirements relating to special industries. This administrative regulation establishes the special industries standards to be enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 699; eff. 12-15-1989; 17 Ky.R. 1852; eff. 1-6-1991; 20 Ky.R. 2698; eff. 5-11-1994; 21 Ky.R. 113; eff. 9-12-1994; 2256; eff. 4-20-1995; 22 Ky.R. 1730; eff. 5-16-1996; 23 Ky.R. 1722; eff. 12-13-1996; 25 Ky.R. 1161; eff. 1-19-1999; 2450; eff. 6-16-1999; 30 Ky.R. 710; eff. 12-5-2003; 31 Ky.R. 1594; 1818; eff. 5-26-2005; 32 Ky.R. 550; 873; eff. 12-2-2005; 33 Ky.R. 1724; 2302; eff. 3-9-2007; 35 Ky.R. 1302; 1758; eff. 3-6-2009; 38 Ky.R. 2027; eff. 8-31-2012; 40 Ky.R. 2834; eff. 9-5-2014; 42 Ky.R. 117, 683; eff. 10-2-2015; 42 Ky.R. 2958; eff. 9-2-2016; 43 Ky.R. 1275, 1563; eff. 3-31-2017; TAm eff. 11-10-2022; Cert eff. 3-28-2024.

803 KAR 2:318 Electrical {#sec-803-kar-2-318 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:318}

Section 1. Definitions.

(1) "Assistant Secretary" means Secretary, Education and Labor Cabinet, or Commissioner of the Department of Workplace Standards, Education and Labor Cabinet.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

Section 2.

(1) General industry shall comply with the following federal regulations published by the Office of the Federal Register, National Archives and Records Services, General Services Administration, except as modified by the definitions established in Section 1 and the requirements in Section 3 of this administrative regulation:

(a) 29 C.F.R. 1910.301 through 29 C.F.R. 1910.399, and Appendices, revised July 1, 2015; and

(b) The amendments to 29 C.F.R. 1910.331 as published in the October 5, 2015 Federal Register, Volume 80, Number 192.

(2) The term "may not" as used in the federal regulations shall be considered a prohibition.

Section 3. 29 C.F.R. 1910.333(b)(2)(iii)(C) is amended to read as follows: "If a lock cannot be applied, tagging procedures shall provide a level of safety equivalent to that obtained by the use of a lock, as outlined in paragraph (b)(2)(iii)(D)."

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1910.301-1910.399
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations. 29 C.F.R. 1910.301-1910.399 establishes the federal requirements relating to electrical safety. This administrative regulation establishes electrical safety standards to be enforced by the Division of Occupational Safety and Health Compliance in general industry.
• History: 16 Ky.R. 700; eff. 12-15-1989; 20 Ky.R. 2700; eff. 5-11-1994; 23 Ky.R. 1724; eff. 12-13-1996; 31 Ky.R. 1595; 1818; eff. 5-26-2005; 33 Ky.R. 3053; 3378; eff. 6-1-2007; 37 Ky.R. 1053; eff.1-3-2011; TAm eff. 9-8-2011; 40 Ky.R. 2837; eff. 9-5-2014; 42 Ky.R. 2960; eff. 9-2-2016; TAm eff. 11-10-2022; Crt eff. 8-31-2023.

803 KAR 2:319 Commercial diving operations {#sec-803-kar-2-319 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:319}

Section 1. Definitions.

(1) "Assistant secretary" means the Secretary of Labor, Commonwealth of Kentucky or Commissioner, Department of Workplace Standards.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as modified by the definitions in Section 1 and the requirements in Section 3 of this administrative regulation, general industry shall comply with the federal regulations published by the Office of the Federal Register, National Archives and Records Administration, 29 C.F.R. 1910.401-1910.444, and Appendices.

History

• RELATES TO: KRS Chapter 338.051, 338.061, 29 C.F.R. Part 1910.401-1910.440
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes commercial diving operations standards that are enforced by the Department of Workplace Standards in general industry.
• History: 16 Ky.R. 700; eff. 12-15-1989; 20 Ky.R. 2700; eff. 5-11-1994; 23 Ky.R. 1724; eff. 12-13-1996; 31 Ky.R. 1595; 1818; eff. 5-26-2005; 33 Ky.R. 3053; 3378; eff. 6-1-2007; TAm eff. 9-8-2011; 38 Ky.R. 104; 10-7-2011; TAm. eff. 7-12-2012; 38 Ky.R. 2029; eff. 8-31-2012; 46 Ky.R. 2837; 47 Ky.R. 319; eff. 11-4-2020.

803 KAR 2:320 Toxic and hazardous substances {#sec-803-kar-2-320 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:320}

Section 1. Definitions.

(1) "Absolute filter" means a filter capable of retaining 99.97 percent of a mono disperse aerosol of zero and three-tenths (0.3) mu particles.

(2) "Area director" means Director, Division of Occupational Safety and Health Compliance, Kentucky Education and Labor Cabinet.

(3) "Authorized employee" means an employee whose duties require the employee to be in the regulated area and who has been specifically assigned to that area by the employer.

(4) "Clean change room" means a room where employees put on clean clothing or protective equipment in an environment free of 4,4' Methylene bis (2-chloroaniline).

(5) "Closed system" means an operation involving 4,4'-Methylene bis (2-chloroaniline) if containment prevents the release of 4,4' Methylene bis (2-chloroaniline) into regulated areas, nonregulated areas, or the external environment.

(6) "Decontamination" means the inactivation of 4,4'-Methylene bis (2-chloroaniline) or its safe disposal.

(7) "Director" means the Director, National Institute for Occupational Safety and Health, or any person directed by the director or the Secretary of Health, Education, and Welfare to act for the director.

(8) "Disposal" means the safe removal of 4,4'-Methylene bis (2-chloroaniline) from the work environment.

(9) "Emergency" means an unforeseen circumstance or set of circumstances resulting in the release of 4,4'-Methylene bis (2-chloroaniline) that could result in exposure to or contact with 4,4'-Methylene bis (2-chloroaniline).

(10) "Employee" is defined by KRS 338.015(2).

(11) "Employer" is defined by KRS 338.015(1).

(12) "External environment" means any environment external to regulated and nonregulated areas.

(13) "Isolated system" means a fully enclosed structure, other than the vessel of containment, of 4,4'-Methylene bis (2-chloroaniline), which is impervious to the passage of entry of 4,4'-Methylene bis (2-chloroaniline) and which would prevent the entry of 4,4'-Methylene bis (2-chloroaniline) into regulated areas, or the external environment, if leakage or spillage from the vessel of containment occurs.

(14) "Laboratory type hood" means a device:

(a) Enclosed on three (3) sides with the top and bottom designed and maintained to draw air inward at an average linear face velocity of 150 feet per minute with a minimum of 125 feet per minute; and

(b) Designed, constructed, and maintained so that an operation involving 4,4'-Methylene bis (2-chloroaniline) within the hood does not require the insertion of any portion of an employee's body other than hands and arms.

(15) "Nonregulated area" means any area under the control of the employer where entry and exit is neither restricted nor controlled.

(16) "Open vessel system" means an operation involving 4,4'-Methylene bis (2-chloroaniline) in an open vessel, which is not in an isolated system, a laboratory type hood, nor in any other system affording equivalent protection against the entry of 4,4'-Methylene bis (2-chloroaniline) into regulated areas, nonregulated areas, or the external environment.

(17) "Protective clothing" means clothing designed to protect an employee against contact with or exposure to 4,4'-Methylene bis (2-chloroaniline).

(18) "Regulated area" means an area where entry and exit is restricted and controlled.

(19) "Standard" means "occupational safety and health standards" as defined by KRS 338.015(3).

Section 2. 4,4'-Methylene bis (2-Chloroaniline).

(1) Scope and application.

(a) This section shall apply to any area in which 4,4'-Methylene bis (2-chloroaniline), Chemical Abstracts Service Registry Number 101144, is manufactured, processed, repackaged, released, handled, or stored. This section shall not apply to trans-shipment in sealed containers, except for the labeling requirements under subsection (4)(b) through (d) of this section.

(b) This section shall not apply to solid or liquid mixtures containing less than one and zero-tenths (1.0) percent by weight of 4,4'-Methylene bis (2-chloroaniline).

(2) Requirements for areas containing 4,4'-Methylene bis (2-chloroaniline). A regulated area shall be established by an employer where 4,4'-Methylene bis (2-chloroaniline) is manufactured, processed, used, repackaged, released, handled, or stored. Those areas shall be controlled in accordance with the requirements established in paragraphs (a) through (g) of this subsection for the category or categories describing the operations involved.

(a) Isolated systems. Employees working with 4,4'-Methylene bis (2-chloroaniline) within an isolated system such as a "glove box" shall wash their hands and arms upon completion of the assigned task and before engaging in other activities not associated with the isolated system.

(b) Closed system operation. Within regulated areas if 4,4'-Methylene bis (2-chloroaniline) is stored in a sealed container, or contained in a closed system including piping systems, with any sample ports or openings closed while 4,4'-Methylene bis (2-chloroaniline) is contained within:

1. Access shall be restricted to authorized employees only; and

2. Employees shall be required to wash hands, forearms, face, and neck upon each exit from the regulated areas, close to the point of exit and before engaging in other activities.

(c) Open vessel system operations. Open vessel system operations shall be prohibited.

(d) Transfer from a closed system, charging or discharging point operations, or otherwise opening a closed system. In operations involving a "laboratory type hood," or in locations where 4,4'-Methylene bis (2-chloroaniline) is contained in an otherwise "closed system," but is transferred, charged, or discharged into other normally closed containers, the provisions of this paragraph shall apply.

1. Access shall be restricted to authorized employees only.

2. Each operation shall be provided with continuous local exhaust ventilation so that air movement shall always be from ordinary work areas to the operation.

a. Exhaust air shall not be discharged to regulated areas, nonregulated areas, or the external environment unless it is decontaminated.

b. Clean make-up air shall be introduced in sufficient volume to maintain the correct operation of the local exhaust system.

3. Employees shall be provided with, and required to wear, clean, full body protective clothing (smocks, coveralls, or long-sleeved shirt and pants), shoe covers, and gloves prior to entering the regulated area.

4. Employees engaged in 4,4'-Methylene bis (2-chloroaniline) handling operations shall be provided with and required to wear and use a half-face, filter-type respirator for dusts, mists, and fumes, in accordance with 29 C.F.R. 1910.134. A respirator affording a higher level of protection may be substituted.

5. Prior to each exit from a regulated area, employees shall be required to remove and leave protective clothing and equipment at the point of exit and at the last exit of the day and to place used clothing and equipment in impervious containers at the point of exit for decontamination or disposal. The contents of the impervious containers shall be identified, as required under subsection (4)(b) through (d) of this section.

6. Employees shall be required to wash hands, forearms, face, and neck on each exit from the regulated area, close to the point of exit, and before engaging in other activities.

7. Employees shall be required to shower after the last exit of the day.

8. Drinking fountains shall be prohibited in the regulated area.

(e) Maintenance and decontamination activities. In cleanup of leaks or spills, maintenance or repair operations on contaminated systems or equipment, or any operations involving work in an area where direct contact with 4,4'-Methylene bis (2-chloroaniline) could result, each authorized employee entering that area shall be:

1. Provided with and required to wear clean, impervious garments, including gloves, boots, and continuous-air supplied hood in accordance with 29 C.F.R. 1910.134;

2. Decontaminated before removing the protective garments and hood; and

3. Required to shower upon removing the protective garments and hood.

(f) Laboratory activities. The requirements of this paragraph shall apply to research and quality control activities involving the use of 4,4'-Methylene bis (2-chloroaniline).

1. Mechanical pipetting aids shall be used for all pipetting procedures.

2. Experiments, procedures, and equipment that could produce aerosols shall be confined to laboratory-type hoods or glove boxes.

3. Surfaces on which 4,4'-Methylene bis (2-chloroaniline) is handled shall be protected from contamination.

a. Contaminated wastes and animal carcasses shall be collected in impervious containers that shall be closed and decontaminated prior to removal from the work area.

b. The wastes and carcasses shall be incinerated so that carcinogenic products shall not be released.

5. All other forms of 4,4'-Methylene bis (2-chloroaniline) shall be inactivated prior to disposal.

6. Employees engaged in animal support activities shall be:

a. Provided with and required to wear, a complete protective clothing change, clean each day, including coveralls or pants and shirt, foot covers, head covers, gloves, and appropriate respiratory protective equipment or devices;

b. Required, prior to each exit from a regulated area, to remove and leave protective clothing and equipment at the point of exit and at the last exit of the day and to place used clothing and equipment in impervious containers at the point of exit for decontamination or disposal. The contents of the impervious containers shall be identified as required under subsection (4)(b) through (d) of this section;

c. Required to wash hands, forearms, face, and neck upon each exit from the regulated area close to the point of exit and before engaging in other activities; and

d. Required to shower after the last exit of the day.

7. Employees, except for those engaged in animal support activities, each day shall be:

a. Provided with and required to wear a clean change of appropriate laboratory clothing, such as a solid front gown, surgical scrub suit, or fully buttoned laboratory coat;

b. Required, prior to each exit from a regulated area, to remove and leave protective clothing and equipment at the point of exit and at the last exit of the day and to place used clothing and equipment in impervious containers at the point of exit for decontamination or disposal. The contents of the impervious containers shall be identified as required under subsection (4)(b) through (d) of this section; and

c. Required to wash hands, forearms, face, and neck upon each exit from the regulated area close to the point of exit and before engaging in other activities.

8. Air pressure in laboratory areas and animal rooms where 4,4'-Methylene bis (2-chloroaniline) is handled and bioassay studies are performed shall be negative in relation to the pressure in the surrounding area. Exhaust air shall not be discharged to regulated areas, nonregulated areas, or the external environment unless it is decontaminated.

9. There shall not be a connection between regulated areas and any other areas through the ventilation system.

10. A current inventory of 4,4'-Methylene bis (2-chloroaniline) shall be maintained.

11. Ventilated apparatus such as laboratory type hoods, shall be tested at least semi-annually or immediately after ventilation modification of maintenance operations, by personnel fully qualified to certify correct containment and operation.

(g) Premixed solutions. If 4,4'-Methylene bis (2-chloroaniline) is present only in a single solution at a temperature not exceeding 120 degrees Celsius, the establishment of a regulated area shall not be required, except:

1. Only authorized employees may handle the materials;

2. Each day employees shall be provided with and required to wear a clean change of protective clothing (smocks, coveralls, or long-sleeved shirts and pants), gloves, and other protective garments and equipment necessary to prevent contact with the solution in the process used;

3. Employees shall be required to remove and leave protective clothing and equipment if leaving the work area at the end of the work day or if solution is spilled on the clothing or equipment. Used clothing and equipment shall be placed in impervious containers for decontamination or disposal. The contents of the impervious containers shall be identified, as required under subsection (4)(b) through (d) of this section;

4. Employees shall be required to wash hands and face after removing protective clothing and equipment and before engaging in other activities;

5. Employees assigned to work covered by this paragraph shall be deemed to be working in regulated areas for the purposes of subsection (4)(a) through (c) of this section; and

6. Work areas where solution could be spilled shall be:

a. Covered daily or after any spill with a clean covering; and

b. Cleaned thoroughly daily and after any spill.

(3) General regulated area requirements.

(a) Employee identification.

1. A daily roster of employees entering regulated areas shall be established and maintained.

2. The rosters or a summary of the rosters shall be retained for a period of at least twenty (20) years.

3. The rosters or summaries shall be provided upon request to authorized representatives of the assistant secretary and the director.

4. If the employer ceases business without a successor, rosters shall be forwarded by registered mail to the director.

(b) Emergencies. In an emergency, immediate measures, including the requirements of this paragraph, shall be implemented.

1. The potentially affected area shall be evacuated as soon as the emergency is determined.

2. Hazardous conditions created by the emergency shall be eliminated and the potentially affected area shall be decontaminated prior to the resumption of normal operations.

a. Special medical surveillance by a physician shall be instituted within twenty-four (24) hours for employees present in the potentially affected area at the time of the emergency.

b. A report of the medical surveillance and any treatment shall be included in the incident report, in accordance with subsection (5)(b) of this section.

4. If an employee has a known contact with 4,4'-Methylene bis (2-chloroaniline), the employee shall be required to shower as soon as possible, unless contraindicated by physical injuries.

5. An incident report on the emergency shall be reported as established in subsection (5)(b) of this section.

(c) Hygiene facilities and practices.

1. The following shall be prohibited in regulated areas:

a. Storage or consumption of food;

b. Storage or use of containers of or for beverages;

c. Consumption of beverages;

d. Storage or application of cosmetics;

e. Smoking;

f. Storage of smoking materials, tobacco products, or other products for chewing; or

g. The chewing of tobacco or other chewing products.

2. If employees are required by this section to wash, washing facilities shall be provided in accordance with 29 C.F.R. 1910.141.

3. If employees are required by this section to shower, facilities shall be provided in accordance with 29 C.F.R. 1910.141(d)(3).

4. If employees wear protective clothing and equipment, clean change rooms shall be provided in accordance with 29 C.F.R. 1910.141(e), for the number of employees required to change clothes.

5. If toilets are located in regulated areas, the toilets shall be in a separate room.

(d) Contamination control.

1. Regulated areas, except for outdoor systems, shall be maintained under pressure negative with respect to nonregulated areas.

a. Local exhaust ventilation may be used to satisfy this requirement.

b. Clean make-up air in equal volume shall replace air removed.

2. Any equipment, material, or other item taken or removed from a regulated area shall be done so in a manner that does not cause contamination in nonregulated areas or the external environment.

3. Decontamination procedures shall be established and implemented to remove 4,4'-Methylene bis (2-chloroaniline) from the surface of materials, equipment, and the decontamination facility.

4. Dry sweeping and dry mopping shall be prohibited.

(4) Signs, information, and training.

(a) Signs.

1. Entrance to regulated areas shall be posted with signs bearing the legend:

2. Entrances to regulated areas containing operations established in subsection (2)(e) of this section shall be posted with signs bearing the legend:

3. Appropriate signs and instructions shall be posted at the entrance to, and exit from, regulated areas, informing employees of the procedures that shall be followed in entering and leaving a regulated area.

(b) Container labeling. Containers shall be labeled in accordance with the requirements of 29 C.F.R. 1910.1200.

(c) Lettering.

1. Lettering on signs and instructions required by paragraph (a) of this subsection shall be a minimum letter height of two (2) inches.

2. Labels on containers required by paragraph (b) of this subsection shall:

a. Not be less than one-half (1/2) the size of the largest lettering on the package, up to a maximum required size of one (1) inch in height; and

b. Not use less than eight (8) point type.

(d) Prohibited statements. A statement shall not appear on or near any required sign, label, or instruction that contradicts or detracts from the effect of any required warning, information, or instruction.

(e) Training and indoctrination.

1. Each employee, prior to being authorized to enter a regulated area, shall receive a training and indoctrination program including:

a. The nature of the carcinogenic hazards of 4,4'-Methylene bis (2-chloroaniline), including local and systemic toxicity;

b. The specific nature of the operation involving 4,4'-Methylene bis (2-chloroaniline) that could result in exposure;

c. The purpose for and application of the medical surveillance program, including, as appropriate, methods of self-examination;

d. The purpose for and application of decontamination practices and procedures;

e. The purpose for and significance of emergency practices and procedures;

f. The employee's specific role in emergency procedures;

g. Specific information to aid the employee in recognition and evaluation of conditions and situations that could result in the release of 4,4'-Methylene bis (2-chloroaniline); and

h. The purpose for and application of specific first-aid procedures and practices.

2. Each employee shall receive a review of this section at the employee's first training and indoctrination program and at least annually thereafter.

3. Specific emergency procedures shall be established and posted, and employees shall:

a. Be familiarized with emergency procedure terms; and

b. Rehearse emergency procedures.

4. All materials relating to the program shall be provided if requested by authorized representatives of the assistant secretary and the director.

(5) Reports.

(a) Operations. Not later than March 1 of each year, the information required by this paragraph shall be reported in writing by the employer to the nearest Area Director. Any change in the reported information shall be reported in writing within fifteen (15) calendar days of the change. The report shall contain:

1. A brief description and in-plant location of the areas regulated and the address of each regulated area;

2. The names and other identifying information as to the presence of 4,4'-Methylene bis (2-chloroaniline) in each regulated area;

3. The number of employees in each regulated area during normal operations, including maintenance activities; and

4. The manner in which 4,4'-Methylene bis (2-chloroaniline) is present in each regulated area, such as whether or not it is manufactured, processed, used, repackaged, released, stored, or otherwise handled.

(b) Incidents. Incidents that result in the release of 4,4'-Methylene bis (2-chloroaniline) into any area where employees may be exposed shall be reported in accordance with this paragraph.

1. A report of the incident and the facts obtainable at that time, including a report on any medical treatment of affected employees, shall be made within twenty-four (24) hours to the nearest area director.

2. A written report shall be filed with the nearest area director within fifteen (15) calendar days of the initial report and shall include:

a. A specification of the amount of material released, the amount of time involved, and an explanation of the procedure used in determining this figure;

b. A description of the area involved, and the extent of known and possible employee and area contamination;

c. A report of any medical treatment of affected employees and any medical surveillance program implemented; and

d. An analysis of the steps to be taken, with specific completion dates, to avoid further similar release.

(6) Medical surveillance. At no cost to the employee, a program of medical surveillance shall be established and implemented for employees considered for assignment to enter regulated areas, and for authorized employees.

(a) Examinations.

1. Before an employee is assigned to enter a regulated area, a preassignment physical examination by a physician shall be provided. The examination shall include the personal history of the employee, family, and occupational background, including genetic and environmental factors.

2. Authorized employees shall be provided with periodic physical examinations at least annually, following the preassignment examination.

3. In all physical examinations, the examining physician shall consider whether or not there exist conditions of increased risk, including reduced immunological competence, current treatment with steroids of cytotoxic agents, pregnancy, and cigarette smoking.

(b) Records.

1. Employers of employees examined pursuant to this subsection shall maintain complete and accurate records of all medical examinations. Records shall be maintained for at least the duration of the employee's employment. If the employee's employment is terminated, including by retirement or death, or if the employer ceases business without a successor, records, or notarized true copies thereof, shall be forwarded by registered mail to the director.

2. Records required by this paragraph shall be provided if requested by authorized representatives of the assistant secretary or the director. If requested by an employee or former employee, the records shall be provided to a physician designated by the employee or to a new employer.

3. Any physician who conducts a medical examination required by this subsection shall submit to the employer, a statement of the employee's suitability for employment in the specific exposure.

Section 3. Laboratory Activities. The requirements of this section shall apply to research and quality control activities involving the use of chemicals covered by 29 C.F.R. 1910.1003 through 1910.1016.

(1) Mechanical pipetting aids shall be used for all pipetting procedures.

(2) Experiments, procedures, and equipment that could produce aerosols shall be confined to laboratory-type hoods or glove boxes.

(3) Surfaces on which chemicals covered by 29 C.F.R. 1910.1003 through 1910.1016 are handled shall be protected from contamination.

(4) Contaminated wastes and animal carcasses shall be collected in impervious containers that shall be closed and decontaminated prior to removal from the work area. The wastes and carcasses shall be incinerated so that carcinogenic products shall not be released.

(5) All other forms of chemicals covered by 29 C.F.R. 1910.1003 through 1910.1016 shall be inactivated prior to disposal.

(6) Laboratory vacuum systems shall be protected with high-efficiency scrubbers or with disposal absolute filters.

(7) Employees engaged in animal support activities shall be:

(a) Provided with and required to wear, a complete protective clothing change, clean each day, including coveralls or pants and shirt, foot covers, head covers, gloves, and appropriate respiratory protective equipment or devices;

(b)

1. Required, prior to each exit from a regulated area, to remove and leave protective clothing and equipment at the point of exit and at the last exit of the day, to place used clothing and equipment in impervious containers at the point of exit for decontamination or disposal; and

2. The contents of the impervious containers shall be identified as required under Section 2(4)(b) through (d) of this administrative regulation;

(c) Required to wash hands, forearms, face, and neck upon each exit from the regulated area close to point of exit, and before engaging in other activities; and

(d) Required to shower after the last exit of the day.

(8) Employees, except for those engaged only in animal support activities, each day shall be:

(a) Provided with and required to wear a clean change of appropriate laboratory clothing, such as a solid front gown, surgical scrub suit, or fully buttoned laboratory coat;

(b)

1. Required, prior to each exit from a regulated area, to remove and leave protective clothing and equipment at the point of exit and at the last exit of the day, to place used clothing and equipment in impervious containers at the point of exit for decontamination or disposal; and

2. The contents of the impervious containers shall be identified as required under Section 2(4)(b) through (d) of this administrative regulation; and

(c) Required to wash hands, forearms, face, and neck upon each exit from the regulated area close to point of exit and before engaging in other activities.

(9) Air pressure in laboratory areas and animal rooms where chemicals covered by 29 C.F.R. 1910.1003 through 1910.1016 are handled and bioassay studies are performed shall be negative in relation to the pressure in surrounding areas. Exhaust air shall not be discharged to regulated areas, nonregulated areas, or the external environment unless it is decontaminated.

(10) There shall not be a connection between regulated areas and any other areas through the ventilation system.

(11) A current inventory of chemicals covered by 29 C.F.R. 1910.1003 through 1910.1016 shall be maintained.

(12) Ventilated apparatus such as laboratory-type hoods shall be tested at least semi-annually or immediately after ventilation modification or maintenance operations, by personnel fully qualified to certify correct containment and operation.

Section 4. Access to Exposure or Medical Records.

(1) The language relating to the access to exposure or medical records in subsection (2) of this section shall apply in lieu of 29 C.F.R. 1910.1020(e)(1)(i).

(2) If an employee or designated representative requests access to an exposure or medical record, the employer shall ensure that access is provided in a reasonable time, place, and manner, but not longer than fifteen (15) days after the request for access is made unless sufficient reason is given why that time is unreasonable or impractical.

(3) The language relating to the access to exposure or medical records in subsection (4) of this section shall apply in lieu of 29 C.F.R. 1910.1020(e)(1)(iii).

(4) If an employee or designated representative requests a copy of a record, the employer shall, except as established in 29 C.F.R. 1910.1020(e)(1)(v) of this section, within the period of time established in subsection (2) of this section, ensure that either:

(a) A copy of the record shall be provided without cost to the employee or representative;

(b) The necessary mechanical copying facilities (for example, photocopying) shall be made available without cost to the employee or representative for copying the record; or

(c) The record shall be loaned to the employee or representative for a reasonable time to enable a copy to be made.

Section 5.

(1) The language relating to gloves in subsection (2) of this section shall apply in lieu of 29 C.F.R. 1910.1030(d)(3)(ix).

(2) Gloves shall be worn if it can be reasonably anticipated that the employees might have hand contact with blood, other potentially infectious materials, mucous membranes, or nonintact skin if performing vascular access procedures or if handling or touching contaminated items or surfaces.

Section 6. Except as established by Sections 1 through 5 of this administrative regulation, general industry shall comply with 29 C.F.R. Subpart Z, Toxic and Hazardous Substances, published by the Office of the Federal Register, National Archives and Records Administration.

History

• RELATES TO: KRS 338.015, 338.031, 29 C.F.R. 1902.3(c)(1), (d)(2), 1902.37(b)(3), 1910.134, 1910.141, 1910.1000 - 1910.1450, 1953.1(a), (b), 1953.5, 1956.2(a), 1956.10(d)(1)
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. 29 C.F.R. 1910.1000 through 1910.1450 establishes the federal requirements relating to toxic and hazardous substances. This administrative regulation establishes the toxic and hazardous substances standards enforced by the Department of Workplace Standards in general industry.
• History: 803 KAR 002:320. 16 Ky.R. 701; eff. 12-15-1989; 1990; eff. 5-10-1990; 2739; eff. 8-9-1990; 17 Ky.R. 1855; eff. 1-6-1991; 3511; eff. 8-2-1991; 18 Ky.R. 1946; eff. 2-7-1992; 3529; eff. 10-7-1992; 19 Ky.R. 1888; eff. 4-7-1993; 20 Ky.R. 642; eff. 11-8-1993; 2701; eff. 5-11-1994; 21 Ky.R. 116; eff. 9-12-1994; 2258; eff. 4-20-1995; 22 Ky.R. 1142; 1466; eff. 2-12-1996; 2063; eff. 7-6-1995; 23 Ky.R. 1726; eff. 12-13-1996; 3932; eff. 7-17-1997; 24 Ky.R. 1150; 1512; eff. 1-12-1998; 2154; eff. 7-13-1998; 25 Ky.R. 1162; eff. 1-19-1999; 2451; eff. 6-16-1999; 28 Ky.R. 703; 1131; eff. 11-12-2001; 30 Ky.R. 714; eff. 12-5-2003; 32 Ky.R. 552; 873; eff. 12-2-2005; 33 Ky.R. 3055; eff. 6-1-2007; 36 Ky.R. 169; 588; eff. 10-2-2009; 37 Ky.R. 153; 722; 10-1-2010; 38 Ky.R. 320; eff. 10-7-2011; 38 Ky.R. 2031; 39 Ky.R. 212; eff. 8-31-2012; 40 Ky.R. 146; eff. 10-4-2013; 42 Ky.R. 2962; eff. 9-2-2016; 43 Ky.R. 1675; 1950; eff. 6-2-2017; 45 Ky.R. 2472, 2898; eff. 5-3-2019; 46 Ky.R. 2704; eff. 9-29-2020; 47 Ky.R. 1628, 2376; eff. 8-3-2021; TAm eff. 11-10-2022; 51 Ky.R. 1322, 1783; eff. 7-1-2025.

803 KAR 2:321 Occupational health and environmental control {#sec-803-kar-2-321 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:321}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "Assistant Secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "C.F.R." means Code of Federal Regulations.

(4) "Standard" is defined by KRS 338.015(3).

(5) "U.S. Department of Labor" means Kentucky Education and Labor Cabinet, Mayo-Underwood Building, 3rd Floor, Frankfort, Kentucky 40601, or the U.S. Department of Labor.

Section 2. Except as modified by the definitions in Section 1, general industry shall comply with 29 C.F.R. 1910, Subpart G, Occupational Health and Environmental Control published by the Office of the Federal Register, National Archives and the Records Services, General Services Administration.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1910.6, 1910.94-1910.98
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes the occupational health and environmental control standards that are enforced by the Department of Workplace Standards in general industry.
• History: 48 Ky.R. 2141; eff. 7-5-2022; TAm eff. 11-10-2022.

803 KAR 2:325 General industry standards {#sec-803-kar-2-325 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:325}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 339.015(2).

(3) "Employer" is defined by KRS 338.015(1).

Section 2. Batteries. Changing and charging storage batteries for automotive-type battery charging installations, in-vehicle charging of batteries, and battery jump starting of vehicles.

(1)

(a) Facilities shall be provided for flushing electrolyte from the eyes and skin with water when changing or charging storage batteries.

(b) An adequate water supply shall be within twenty-five (25) feet of the work area.

(2)

(a) A battery shall not be charged or discharged within a closed or unvented container.

(b) The batteries shall be charged:

1. In the open;

2. In a mechanically-ventilated space; or

3. In a space providing at least twenty (20) cubic feet per ampere of charging capacity.

(3)

(a) A face shield or goggles shall be provided and available at each charging unit.

(b) The use of the face shield or goggles shall be required for connection and disconnection of vehicle or charger leads to the battery terminals and for the addition or pouring of electrolyte.

(4) Employees shall wear face shields or goggles during installation and removal of batteries from vehicles, while connecting and disconnecting battery charger or jumper cable leads, or while handling electrolyte.

(5) Employees shall be instructed to:

(a) Turn off the battery charger to connect or disconnect the battery;

(b) Wash acid spills immediately; and

(c) Flush electrolyte from eyes and skin with water for ten (10) minutes.

Section 3. Off-highway Motor Vehicles and Equipment.

(1) General requirements.

(a) Heavy machinery, equipment, or parts suspended or held aloft by use of slings, hoists, or jacks shall be substantially blocked or cribbed to prevent falling or shifting before employees are permitted to work under or between them.

(b)

1. Bulldozers and scraper blades, end-loader buckets, dump bodies, and similar equipment, shall be either fully lowered or blocked when being repaired or when not in use.

2. All controls shall be in a neutral position, with the motors stopped and brakes set, unless work being performed requires otherwise.

(c) Whenever the equipment is parked, the parking brake shall be set.

(d) Equipment parked on inclines shall have the wheels chocked and the parking brake set.

(e) All cab glass shall be safety glass, or equivalent, that introduces no visible distortion affecting the safe operation of any machine covered by this section.

(f) All equipment covered by this section shall comply with the requirements of 29 C.F.R. 1910.333 when working or being moved in the vicinity of power lines or energized transmitters.

(2) Motor vehicles.

(a) Coverage. Motor vehicles covered by this section are those vehicles that operate within an off-highway job site not open to public traffic. The requirements of this section do not apply to equipment in subsection (3) of this section.

(b) General requirements.

1. All vehicles shall have a service brake system, an emergency brake system, and a parking brake system.

2. These systems may use common components, and shall be maintained in operable condition.

(c) Whenever visibility conditions warrant additional light, all vehicles, or combinations of vehicles, in use shall be equipped with at least two (2) headlights and two (2) taillights in operable condition.

(d) All vehicles, or combination of vehicles, shall have brake lights in operable condition regardless of light conditions.

(e) All vehicles shall be equipped with an adequate audible warning device at the operator's station and in an operable condition.

(f) Motor vehicle equipment shall not be used having an obstructed view to the rear unless:

1. The vehicle has a reverse signal alarm audible above the surrounding noise level; or

2. The vehicle is backed only when an observer signals that it is safe to do so.

(g)

1. All vehicles with cabs shall be equipped with windshields and powered wipers.

2. Cracked and broken glass shall be replaced.

3. Vehicles operating in areas or under conditions that cause fogging or frosting of the windshields shall be equipped with operable defogging or defrosting devices.

(h) All haulage vehicles loaded by means of cranes, power shovels, loaders, or similar equipment, shall have a cab shield or canopy adequate to protect the operator from shifting or falling materials.

(i) Tools and material shall be secured to prevent movement when transported in the same compartment with employees.

(j) Vehicles used to transport employees shall have seats firmly secured and adequate for the number of employees carried.

(k) The employer shall provide and insure the use of seat belts and anchorages meeting the requirements of 49 C.F.R. Part 571, Department of Transportation, Federal Motor Vehicle Safety Standards.

(l) Trucks with dump bodies shall be equipped with positive means of support, permanently attached, and capable of being locked in position to prevent accidental lowering of the body while maintenance or inspection work is being done.

(m) Operating levers controlling hoisting or dumping devices on haulage bodies shall be equipped with a latch or other device that prevents accidental starting or tripping of the mechanism.

(n) Trip handles for tailgates of dump trucks shall be so arranged that, in dumping, the operator will be in the clear.

(o)

1. Each employer shall assure the following parts, equipment, and accessories are in safe operating condition and free of apparent damage that could cause failure while in use:

a. Service brakes, including trailer brake connections;

b. Parking system brake;

c. Brakes;

d. Tires;

e. Horn;

f. Steering mechanism;

g. Coupling devices;

h. Seat belts;

i. Operating controls; and

j. Safety devices.

2. All defects shall be corrected before the vehicle is placed in service.

3. These requirements shall also apply to equipment such as lights, reflectors, windshield wipers, defrosters, and fire extinguishers.

(3) Material handling equipment.

(a) General. The requirements of this subsection shall apply to scrapers, loaders, crawler or wheel tractors, bulldozers, off-highway trucks, graders, agricultural and industrial tractors, and similar equipment.

(b) Seating and seat belts.

1. Each employer shall insure safe seating with seat belts on all equipment covered by this section, and shall meet the requirement of J386, Society of Automotive Engineers Handbook, 1986, Operator Restraint Systems for Off-road Work Machines.

2. Seat belts for agricultural and light industrial tractors shall meet the seat belt requirements of Society of Automotive Engineers J1194, Society of Automotive Engineers Handbook, 1986, Rollover Protective Structures (ROPS) for Wheeled Agricultural Tractors.

(c) Seat belts need not be provided for equipment designed only for stand-up operation.

(d) Seat belts need not be provided for equipment that does not have rollover protective structure or adequate canopy protection.

(e) Audible alarms.

a. All bidirectional machines, such as rollers, compactors, front-end loaders, bulldozers, and similar equipment, shall be equipped with a horn, distinguishable from the surrounding noise level, which shall be operated as needed when the machine is moving in either direction.

b. The horn shall be maintained in an operative condition.

2. Material handling equipment or compacting equipment that has an obstructed view to the rear shall not be used in reverse gear unless the equipment has in operation a reverse signal alarm distinguishable from the surrounding noise level or an employee signals that it is safe to do so.

(f) Scissor points. Scissor points on all front-end loaders that constitute a hazard to the operator during normal operation shall be guarded.

Section 4.

(1) Scope. This section shall apply to industrial fire departments and private, public or contractual type fire departments. This section shall not apply to volunteer fire departments.

(2) Persons riding on fire apparatus. A person riding on fire apparatus shall be secured to the vehicle by seat belts or safety harnesses when the vehicle is in motion.

(3) Inspection, maintenance, and repair of vehicles.

(a) All fire department vehicles shall be inspected at least weekly and within twenty-four (24) hours after any use or repair to identify and correct unsafe conditions.

(b) A fire department vehicle found to be unsafe shall be placed out of service until repaired.

(c) After being repaired, the vehicle shall be inspected prior to being placed back in service.

(d) The inspection shall include:

1. Tires, brakes, warning lights and devices, headlights and clearance lights, windshield wipers and mirrors;

2. Starting the apparatus, and verification of the operation of pumps and other equipment; and

3. Inspection of the safety equipment carried on fire department vehicles.

(e) A fire department shall maintain inspection, maintenance, repair, and service records for all vehicles and equipment used for emergency operations.

(4) Facility safety.

(a) Sleeping areas in fire stations shall:

1. Be separated from vehicle storage areas by at least one (1) hour fire resistive assemblies; or

2. Have operable fire suppression or operable smoke detection systems.

(b) A fire station shall have a system capable of ventilating.

Section 5. Material Incorporated by Reference.

(1) The following material is incorporated by reference:

(a) J386, Society of Automotive Engineers Handbook, "Operator Restraint Systems for Off-road Work Machines", 1986; and

(b) J1194, Society of Automotive Engineers Handbook, "Rollover Protective Structures (ROPS) for Wheeled Agricultural Tractors", 1986.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Education and Labor Cabinet, Mayo-Underwood Building, 3rd Floor, Frankfort, Kentucky 40601, Monday through Friday, 8:00 a.m. to 4:30 p.m. EST. The Education and Labor Cabinet Web site is www.labor.ky.gov.

(3) The Society of Automotive Engineers Web site is SAE.org.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1910.333, 49 C.F.R. Part 571
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in general industry.
• History: 3 Ky.R. 793; 4 Ky.R. 104; eff. 8-3-1977; 231; eff. 2-1-1978; 6 Ky.R. 585; eff. 7-2-1980; 8 Ky.R. 919; eff. 4-7-1982; 10 Ky.R. 299; eff. 12-2-1983; 12 Ky.R. 252; eff. 9-10-1985; 13 Ky.R. 61; eff. 8-12-1986; 18 Ky.R. 165; 691; eff. 9-6-1991; TAm eff. 8-9-2007; TAm eff. 9-8-2011; Recodified from 803 KAR 2:015, 1-7-2021; 47 Ky.R. 2697; 48 Ky.R. 1539; eff. 2-1-2022; TAm eff. 11-10-2022.

803 KAR 2:400 Adoption of 29 C.F.R. Part 1926 Subpart A {#sec-803-kar-2-400 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:400}

Section 1. Definitions.

(1) "Assistant secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

(5) "Standard" is defined by KRS 338.015(3).

Section 2. The construction industry shall comply with the following federal regulations published by the Office of the Federal Register, National Archives and Records Administration, except as modified by the definitions established in Section 1 of this administrative regulation:

(1) 29 C.F.R. 1926.1- 6; and

(2) The amendments to 29 C.F.R. 1926.6 as published in the May 14, 2019 Federal Register, Volume 84, Number 93.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1926.1-6
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to adopt occupational safety and health administrative regulations and authorizes the chairman of the board to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards to be enforced by the Department of Workplace Standards in the construction industry.
• History: 16 Ky.R. 703; eff. 12-15-1989; TAm eff. 8-9-2007; 37 Ky.R. 1055; 1434; eff. 1-3-2011; 40 Ky.R. 152; eff. 10-4-2013; 2839; 41 Ky.R. 271; eff. 9-5-2014; 42 Ky.R. 2968; 43 Ky.R. 334; eff. 9-2-2016; 46 Ky.R. 2709; eff. 9-29-2020; TAm eff. 11-10-2022.

803 KAR 2:401 General interpretations {#sec-803-kar-2-401 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:401}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

(5) "Secretary of Education and Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(6) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as established in Section 1 of this administrative regulation, the construction industry shall comply with the 29 C.F.R. 1926, Subpart B, General Interpretations, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS Chapter 338.051, 338.061, 29 C.F.R. 1926.10-16
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 16 Ky.R. 1098; eff. 12-15-1989; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 1634; 2380; eff. 8-3-2021; TAm eff. 11-10-2022.

803 KAR 2:402 General safety and health provisions {#sec-803-kar-2-402 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:402}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "Assistant Secretary of Education and Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "C.F.R." means Code of Federal Regulations.

(4) "Employee" is defined by KRS 338.015(2).

(5) "Employer" is defined by KRS 338.015(1).

(6) "Established federal standard" is defined by KRS 338.015(10).

(7) "National consensus standard" is defined by KRS 338.015(9).

(8) "Secretary of Education and Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(9) "Standard" is defined by KRS 338.015(3).

(10) "U.S. Department of Labor" means U.S. Department of Labor or Kentucky Education and Labor Cabinet, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601.

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. Subpart C, General safety and health provisions, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS 338.015, 29 C.F.R. 1926.20-1926.35
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 16 Ky.R. 1099; eff. 12-15-1989; 20 Ky.R. 2704; eff. 5-11-1994; 23 Ky.R. 1732; eff. 12-13-1996; 3938; eff. 7-17-1997; 25 Ky.R. 2457; eff. 6-16-1999; TAm eff. 8-9-2007; 36 Ky.R. 175; 592; eff. 10-2-2009; 37 Ky.R. 1057; eff. 1-3-2011; 42 Ky.R. 119; 684; eff. 10-2-2015; 48 Ky.R. 2517; eff. 10-4-2022; TAm eff. 11-10-2022.

803 KAR 2:403 Occupational health and environmental controls {#sec-803-kar-2-403 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:403}

Section 1. Definitions.

(1) "Assistant secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(2) "Director" means Director, Division of Occupational Safety and Health Compliance, Kentucky Education and Labor Cabinet.

(3) "U.S. Department of Labor" means Kentucky Education and Labor Cabinet, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601, or U.S. Department of Labor.

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, the construction industry shall comply with the following federal requirements published in the Office of the Federal Register, National Archives and Records Services:

(1) 29 C.F.R. 1926.50 through 1926.66;

(2) The revisions to 29 C.F.R 1926.55 as published in the January 9, 2017 Federal Register, Volume 81, Number 5; and

(3) The amendments to 29 C.F.R. 1926.50, 29 C.F.R. 1926.55, and 29 C.F.R. 1926.64 as published in the May 14, 2019 Federal Register, Volume 84, Number 93.

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1926.50-1926.66
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. 29 C.F.R. 1926.50 to 1926.66 establish the federal requirements relating to occupational health and environmental controls. This administrative regulation establishes the occupational health and environmental control standards enforced by the Department of Workplace Standards in the construction industry.
• History: 16 Ky.R. 704; eff. 12-15-1989; Am. 16 Ky.R. 2468; eff. 7-9-1990; 18 Ky.R. 184; eff. 9-6-1991; 1950; eff. 2-7-1992; 19 Ky.R. 1892; eff. 4-7-1993; 20 Ky.R. 645; eff. 11-8-1993; 2705; eff. 5-11-1994; 21 Ky.R. 119; eff. 9-1219-1994; 2261; eff. 4-20-1995; 22 Ky.R. 1149; 1473; eff. 2-12-1996; 23 Ky.R. 1734; eff. 12-13-1996; 3939; eff. 7-17-1997; 24 Ky.R. 1156; eff. 1-12-1998; 25 Ky.R. 1168; eff. 1-19-1999; 2458; eff. 6-16-1999; 32 Ky.R. 559; 877; eff. 12-2-2005; 33 Ky.R. 1132; 1529; eff. 1-5-2007; 3062; eff. 6-1-2007; 36 Ky.R. 177; 593; eff. 10-2-2009; 38 Ky.R. 112; eff. 10-7-2011; 38 Ky.R. 2037; eff. 8-31-2012; 40 Ky.R. 154; eff. 10-4-2013; 42 Ky.R. 2970; eff. 9-2-2016; 43 Ky.R. 1681; eff. 6-2-2017; 46 Ky.R. 2711; eff. 9-29-2020; TAm eff. 11-10-2022.

803 KAR 2:404 Personal protective and lifesaving equipment {#sec-803-kar-2-404 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:404}

Section 1. Definitions.

(1) "Assistant secretary" means Secretary, Kentucky Education and Labor Cabinet or Commissioner of the Department of Workplace Standards.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined in KRS 338.015(2).

(4) "Employer" is defined in KRS 338.015(1).

(5) "OSHA" means the Occupational Safety and Health Administration or the Kentucky Division of Occupational Safety and Health.

Section 2. Except as modified in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926, Subpart E, Personal Protective and Life Saving Equipment, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS 338.051(3), 338.061, 29 C.F.R. 1926.95-1926.107
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman of the board to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. 29 C.F.R 1926.95 to 1926.107 establish the federal requirements relating to personal protective and lifesaving equipment. This administrative regulation establishes personal protective and lifesaving equipment standards enforced by the Department of Workplace Standards in the construction industry.
• History: 803 KAR 002:404. 16 Ky.R. 705; eff. 12-15-1989; 20 Ky.R. 2707; eff. 5-11-1994; 21 Ky.R. 2264; eff. 4-20-1995; 22 Ky.R. 1731; eff. 5-16-1996; 23 Ky.R. 3941; eff. 7-17-1997; 25 Ky.R. 1170; eff. 1-19-1999; TAm eff. 8-9-2007; 34 Ky.R. 2047; 2286; eff. 5-2-2008; TAm eff. 9-8-2011; 40 Ky.R. 155; eff. 10-4-2013; 2841; eff. 9-5-2014; 42 Ky.R. 2972; eff. 9-2-2016; 46 Ky.R. 2713; eff. 9-29-2020; TAm eff. 11-10-2022; 52 Ky.R. 113; eff. 12-30-2025.) COMPILER'S NOTE: 2025 RS HB 6, enacted by the General Assembly on March 27, 2025, altered the information to be provided at the time an administrative regulation is filed. Aside from formatting changes necessary to upload the regulation into the LRC's publication application, this regulation has been published as submitted by the agency.

803 KAR 2:405 Fire protection and prevention {#sec-803-kar-2-405 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:405}

Section 1. Definitions.

(1) "Assistant secretary" means Secretary, Education and Labor Cabinet or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.0151(1).

Section 2. Except as established in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926 Subpart F, Fire Protection and Prevention published in the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS 338.051(3), 338.061, 29 C.F.R. 1926.150-159
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 16 Ky.R. 710; eff. 12-15-1989; 20 Ky.R. 2711; eff. 5-11-1994; 23 Ky.R. 3946; eff. 7-17-1997; 25 Ky.R. 2459; eff. 6-16-1999; TAm eff. 9-8-2011; 38 Ky.R. 2040; 39 Ky.R. 217; eff. 8-31-2012; 47 Ky.R. 1636, 2380; eff. 8-3-2021; TAm eff. 11-10-2022.

803 KAR 2:406 Signs, signals, and barricades {#sec-803-kar-2-406 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:406}

Section 1. Definitions.

(1) "Administration" means the Kentucky Occupational Safety and Health Program, Frankfort, Kentucky.

(2) "Area director" means Director, Division of Occupational Safety and Health Compliance, Kentucky Education and Labor Cabinet.

(3) "Assistant secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(4) "U.S. Department of Labor" means Kentucky Education and Labor Cabinet¸ 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601, or U.S. Department of Labor.

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, the construction industry shall comply with the following federal regulations published by the Office of the Federal Register, National Archives and Records Administration:

(1) 29 C.F.R. 1926.200-1926.203;

(2) The revisions to 29 C.F.R. 1926.200-1926.202 as published in the June 13, 2013 Federal Register, Volume 78, Number 114, and confirmed and corrected in the November 6, 2013 Federal Register, Volume 78, Number 215; and

(3) The amendments to 29 C.F.R. 1926.200-1926.203 as published in the May 14, 2019 Federal Register, Volume 84, Number 93.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1926.200-1926.203
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman of the board to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards enforced by the Department of Workplace Standards in the construction industry.
• History: 16 Ky.R. 710; eff. 12-15-89; Am. 20 Ky.R. 2713; eff. 5-11-94; 29 Ky.R. 2355; eff. 5-15-03; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 40 Ky.R. 2843; 41 Ky.R. 271; eff. 9-5-2014; 46 Ky.R. 2715; 47 Ky.R. 63; eff. 9-29-2020; TAm eff. 11-10-2022.

803 KAR 2:407 Materials Handling, Storage, Use, and Disposal {#sec-803-kar-2-407 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:407}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "Assistant secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "C.F.R." means Code of Federal Regulations.

(4) "Employee" is defined by KRS 338.015(2).

(5) "Employer" is defined by KRS 338.015(1).

(6) "Established federal standard" is defined by KRS 338.015(10).

(7) "National consensus standard" is defined by KRS 338.015(9).

(8) "Secretary of Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(9) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

(10) "U.S. Department of Labor" means U.S. Department of Labor or Kentucky Education and Labor Cabinet, 500 Mero Street, 3rd Floor Frankfort, Kentucky 40601.

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, the construction industry shall comply with the following federal regulations published by the Office of the Federal Register, National Archives and Records Administration:

(1) 29 C.F.R. 1926.250 through 29 C.F.R. 1926.252; and

(2) The amendment to 29 C.F.R. 1926.250 as published in the May 14, 2019 Federal Register, Volume 84, Number 93.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1926.250-1926.252
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards enforced by the Department of Workplace Standards in the construction industry.
• History: 16 Ky.R. 1100; eff. 12-15-89; 20 Ky.R. 2714; eff. 5-11-94; 21 Ky.R. 2268; eff. 4-20-95; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 38 Ky.R. 114; eff. 10-7-11; 38 Ky.R. 2042; 39 Ky.R. 217; eff. 8-31-2012; 40 Ky.R. 157; 545; eff. 10-4-2013; 46 Ky.R. 2717; eff. 9-29-2020; TAm eff. 11-10-2022.

803 KAR 2:408 Tools - hand and power {#sec-803-kar-2-408 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:408}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as established in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926, Subpart I, Tools-Hand and Power, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1926.301-307
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 16 Ky.R. 1101; eff. 12-15-1989; Am. 17 Ky.R. 3514; eff. 8-2-1991; 20 Ky.R. 2715; eff. 5-11-1994; 23 Ky.R. 1740; eff. 12-13-1996; 31 Ky.R. 1598; 1819; eff. 5-26-2005; TAm eff. 8-9-2007; TAm eff. 9-8-2011; TAm eff. 7-12-2012; 47 Ky.R. 1638, 2381; eff. 8-3-2021.

803 KAR 2:409 Welding and cutting {#sec-803-kar-2-409 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:409}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as established in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926, Subpart J, Welding and Cutting, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1926.350-354
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal federal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 16 Ky.R. 711; eff. 12-15-89; Am. 20 Ky.R. 2716; eff. 5-11-94; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 1639, 2381; eff. 8-3-2021.

803 KAR 2:410 Electrical {#sec-803-kar-2-410 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:410}

Section 1. Definitions.

(1) "Assistant Secretary of Education and Labor" means Secretary, Education and Labor Cabinet or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

(5) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as established in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926 Subpart K, Electrical, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1926.400-449
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 16 Ky.R. 712; eff. 12-15-1989; 20 Ky.R. 2717; eff. 5-11-1994; 23 Ky.R. 1741; eff. 12-13-1996; 3947; eff. 7-17-1997; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 1641; 2381; eff. 8-3-2021; TAm eff. 11-10-2022.

803 KAR 2:411 Scaffolds {#sec-803-kar-2-411 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:411}

Section 1. Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "National consensus standard" is defined by KRS 338.015(9).

(5) "Secretary of Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(6) "Standard" is defined by KRS 338.015(3).

(7) "U.S. Department of Labor" means U.S. Department of Labor or Kentucky Education and Labor Cabinet, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601.

Section 2. The construction industry shall comply with 29 C.F.R. 1926, Subpart L, Scaffolds published by the Office of the Federal Register, National Archives, and Records Administration.

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1926.450-454
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061, 29 C.F.R. 1926
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 16 Ky.R. 713; eff. 12-15-1989; 17 Ky.R. 3515; eff. 8-2-1991; 20 Ky.R. 2719; eff. 5-11-1994; 23 Ky.R. 3949; eff. 7-17-1997; 24 Ky.R. 1158; 1518; eff. 4-15-1998; TAm eff. 8-9-2007; 37 Ky.R. 1059; eff. 1-3-2011; 40 Ky.R. 159; eff. 10-4-2013; 48 Ky.R. 2519; eff. 10-4-2022; TAm eff. 11-10-2022.

803 KAR 2:412 Fall protection {#sec-803-kar-2-412 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:412}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Fall restraint system" means a system that:

(a) Is used to prevent an employee from falling any distance consisting of an anchorage, connectors, and body belt or harness; and

(b) May include, lanyards, lifelines, or rope grabs designed for that purpose.

(5) "Guardrail system" is defined by 29 C.F.R. 1926.500(b).

(6) "Leading edge" is defined by 29 C.F.R. 1926.500(b).

(7) "Personal fall arrest system" is defined by 29 C.F.R. 1926.500(b).

(8) "Platform" is defined by 29 C.F.R. 1926.450.

(9) "Rake edge" means the roof edge at the gable end of a structure.

(10) "Residential construction" means construction work on a stand-alone single family dwelling, duplex, threeplex, or fourplex structure.

(11) "Roofing work" is defined by 29 C.F.R. 1926.500(b).

(12) "Safety monitoring system" is defined by 29 C.F.R. 1926.500(b).

(13) "Safety net system" means a system used in accordance with 29 C.F.R. 1926.502(c).

(14) "Slope" means the roof vertical rise in inches for every horizontal twelve (12) inch length, with:

(a) The horizontal twelve (12) inch length referred to as the run;

(b) The slope referred to as pitch; and

(c) The slope expressed with the rise (vertical) mentioned first and the run (horizontal) mentioned second, such as "4 in 12" or "4 on 12" and written as "4 in 12" or "4:12" or "4/12."

(15) "Standard" is defined by KRS 338.015(3).

(16) "Three (3) points of contact" means either:

(a) One (1) hand and both feet; or

(b) One (1) foot and both hands.

Section 2.

(1) The construction industry shall comply with the following federal regulations, except as modified by the definitions in Section 1 and requirements in Section 3 of this administrative regulation:

(a) 29 C.F.R. 1926.500 through 29 C.F.R. 1926.501(b)(12), revised July 1, 2016; and

(b) 29 C.F.R. 1926.501(b)(14) through 29 C.F.R. 1926.503, revised July 1, 2016.

(2) An employer may utilize Appendices A, B, C, D, and E to Subpart M of 29 C.F.R. Part 1926, revised July 1, 2016, except the Sample Fall Protection Plan for Residential Construction found in Appendix E.

(3) The Non-Mandatory Sample Fall Protection Plan for Residential Construction may be used and is incorporated by reference in Section 4 of this administrative regulation.

Section 3. Residential Construction.

(1) General.

(a) While engaged in residential construction activities, each employee working six (6) feet or more above a lower level shall be protected by guardrail systems, safety net systems, personal fall arrest systems, or a measure provided in this section.

(b) The employer shall use a measure that meets the criteria established in this section and shall not be required to demonstrate that it is infeasible or creates a greater hazard to use guardrail systems, safety net systems, or personal fall arrest systems before using a measure provided in this section.

(c) If an employer can demonstrate that it is infeasible or creates a greater hazard to use guardrail systems, safety net systems, personal fall arrest systems, or a measure established in this section, the employer shall develop and implement a written fall protection plan which meets the requirements of 29 C.F.R. 1926.502(k) for a particular workplace situation in lieu of implementing guardrail systems, safety net systems, personal fall arrest systems, or a measure provided in this section.

(2) Floor system.

(a) Each employee engaged in residential construction floor system work exposed to a fall hazard six (6) feet or more above a lower level to the exterior of the structure being constructed shall be protected by guardrail systems, safety net systems, personal fall arrest systems, or personal fall restraint systems.

(b) Each employee engaged in residential construction floor system work exposed to an interior fall hazard six (6) feet or more above a lower level shall be protected by guardrail systems, safety net systems, personal fall arrest systems, personal fall restraint systems, or, if the floor joists or trusses are eighteen (18) inches on center or less, the measures established in this paragraph.

1. The first joist or truss shall be placed into position and secured by workers on the ground, from ladders, or from a scaffold system.

2. Successive joists or trusses shall be placed into position and then secured from a secured temporary platform.

3. The temporary platform shall be at least eighteen (18) inches wide and secured.

4. The employee performing the work shall work from the platform and remain on the platform.

(c) Each employee engaged in leading edge residential construction floor system work six (6) feet or more above a lower level shall be protected by guardrail systems, safety net systems, personal fall arrest systems, personal fall restraint systems, or, if the floor joists or trusses are eighteen (18) inches on center or less, the measures established in this paragraph.

1. The first row of floor sheathing shall be placed into position, installed, and secured from the ground, from ladders, from a scaffold system, or from a secured temporary platform at least eighteen (18) inches wide.

2. The employee performing the work shall work from the platform and remain on the platform.

3. After the first row of sheathing has been installed and secured, only employees performing the installation shall work from the established and secured deck or from a secured temporary platform at least eighteen (18) inches wide.

4. After two (2) rows of sheathing have been installed, only the employee performing the installation shall work from the established and secured deck or from a secured temporary platform at least eighteen (18) inches wide.

5. All other employees shall remain at least four (4) feet away from the leading edge.

(3) Roof system.

(a) Each employee engaged in residential construction roof truss or rafter work six (6) feet or more above a lower level shall:

1. Be protected by guardrail systems, safety net systems, personal fall arrest systems; or

2. Personal fall restraint systems or implement the measure established in paragraph (b) of this subsection.

(b) The employee releasing the hoist line or installing the bracing shall:

1. Move or work from within the webbing of the truss or within the rafters on a secured temporary platform at least eighteen (18) inches wide; or

2. Maintain three (3) points of contact while moving or working within the webbing of the trusses or within the rafters.

(c) Employees shall not move or work outside the webbing of the trusses or outside the rafters unless utilizing a personal fall arrest system or personal fall restraint system.

(d) Each employee engaged in residential construction attic work six (6) feet or more above a lower level shall be protected by guardrail systems, safety net systems, personal fall arrest systems, personal fall restraint systems, or the measures established in this paragraph.

1. Each employee shall move or work from within the webbing of the trusses or within the rafters on a secured temporary platform at least eighteen (18) inches wide.

2. Each employee shall remain on the platform while performing the work.

(4) Roofing work.

(a) Supplies or materials shall not be placed or stored within six (6) feet of the roof edge.

(b) An employee shall not ascend, work on, or descend the roof within six (6) feet of the rake edge except while applying or removing roofing materials or equipment.

(c) Warning line systems.

1. Each employee engaged in residential construction roofing work six (6) feet or more above a lower level on roof slopes three (3) in twelve (12) or less shall be protected by guardrail systems, safety net systems, personal fall arrest systems, personal fall restraint systems, or a combination of warning line system and guardrail system, warning line system and safety net system, warning line system and personal fall arrest system, warning line system and personal fall restraint system, or warning line system and safety monitoring system. On roofs fifty (50) feet or less in width, a safety monitoring system alone may be used. Appendix A to Subpart M of 29 C.F.R. Part 1926, revised July 1, 2005, may be used as a guideline to determine roof width.

2. Each employee performing residential construction roofing work between a roof edge and a warning line shall be protected by guardrail systems, safety net systems, personal fall arrest systems, or personal fall restraint systems.

Section 4. Incorporation by Reference.

(1) A "Non-Mandatory Sample Fall Protection Plan for Residential Construction", August 2005, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Education and Labor Cabinet, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. This material is also available on the agency's Web site at www.labor.ky.gov.

History

• RELATES TO: KRS 338.015, 338.031, 338.051, 338.061, 29 C.F.R. 1926.500-1926.503
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) and 338.061(1) require the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations. This administrative regulation establishes standards to be enforced by the Division of Occupational Safety and Health Compliance relating to fall protection in the construction industry. This administrative regulation requires employers to comply with federal standards except for certain limited residential construction activities. When engaged in those limited activities, employers may choose compliance options not provided in the federal standards.
• History: 16 Ky.R. 1102; eff. 12-15-1989; 17 Ky.R. 3516; eff. 8-2-1991; 21 Ky.R. 2270; eff. 4-20-1995; 22 Ky.R. 1739; 2002, eff. 5-16-1996; 28 Ky.R. 2248; eff. 6-14-2002; 32 Ky.R. 740; 1093; eff. 1-6-2006; 37 Ky.R. 1061; 1434; eff. 1-3-2011; TAm eff. 9-8-2011; 40 Ky.R. 2845; 41 Ky.R. 271; eff. 9-5-2014; 43 Ky.R. 106; 985; eff. 1-6-2017; TAm eff. 11-10-2022; Cert eff. 1-5-2024.

803 KAR 2:413 Helicopters, hoists, elevators, and conveyors {#sec-803-kar-2-413 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:413}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926 Subpart N, Helicopters, Hoists, Elevators, and Conveyors, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1926.550-556
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 16 Ky.R. 714; eff. 12-15-1989; Am. 17 Ky.R. 1858; eff. 1-6-1991; 20 Ky.R. 2720; eff. 5-11-1994; 21 Ky.R. 2271; eff. 4-20-1995; TAm eff. 8-9-2007; 37 Ky.R. 1065; eff. 1-3-2011; 37 Ky.R. 1065; eff. 1-3-2011; 47 Ky.R. 1480, 2382; eff. 8-3-2021.

803 KAR 2:414 Motor vehicles, mechanized equipment, and marine operations {#sec-803-kar-2-414 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:414}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as established in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926 Subpart O, Motor Vehicles, Mechanized Equipment, and Marine Operations published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1926.600-606
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 16 Ky.R. 715; eff. 12-15-1989; Am. 20 Ky.R. 2721; eff. 5-11-1994; 26 Ky.R. 654; eff. 11-15-1999; TAm eff. 8-9-2007; 37 Ky.R. 1067; 1437; eff. 1-3-2011; 47 Ky.R. 1643, 2382; eff. 8-3-2021.

803 KAR 2:415 Excavations {#sec-803-kar-2-415 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:415}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

Section 2. Except as established in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926, Subpart P, Excavations, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS Chapter 338.051, 338.061, 29 C.F.R. 1926.650-653.pag
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 16 Ky.R. 1102; eff. 12-15-1989; Am. 16 Ky.R. 2470; eff. 7-9-1990; 21 Ky.R. 2272; eff. 4-20-1995; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 1645, 2383; eff. 8-3-2021.

803 KAR 2:416 Concrete and masonry work {#sec-803-kar-2-416 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:416}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

Section 2. Except as established in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926 Subpart Q, Concrete and Masonry Construction, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS Chapter 338.051, 338.061, 29 C.F.R. 1926.700-706
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction
• History: 16 Ky.R. 716; eff. 12-15-1989; Am. 17 Ky.R. 3518; eff. 8-2-1991; 21 Ky.R. 2274; eff. 4-20-1995; TAm eff. 9-8-2011; 47 Ky.R. 1647, 2383; eff. 8-3-2021.

803 KAR 2:417 Steel erection {#sec-803-kar-2-417 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:417}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

Section 2. Except as established in Section 1 and the requirements in Section 3 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926, Subpart R, Steel Erection, published by the Office of the Federal Register, National Archives and Records Administration.

Section 3. Fall Hazards.

(1)

(a) Paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1926.760(a)(1).

(b) Each employee engaged in a steel erection activity who is on a walking or working surface with an unprotected side or edge ten (10) feet or more above a lower level shall be protected from fall hazards by guardrail systems, safety net systems, personal fall arrest systems, positioning device systems, or fall restraint systems.

(2)

(a) Paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1926.760(a)(3).

(b) Connectors and employees working in controlled decking zones shall be protected from fall hazards in accordance with subsection (5) of this section, respectively.

(3)

(a) Paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1926.760(b)(1).

(b) Each connector shall be protected in accordance with subsection (2) of this section from fall hazards of ten (10) feet or more above a lower level.

(4)

(a) Paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1926.760(b)(3).

(b) Each connector shall be provided with, wear, and utilize, at heights of ten (10) feet or more above a lower level, a personal fall arrest system, positioning device system, or fall restraint system or be provided with other means of protection from fall hazards in accordance with subsection (1) of this section.

(5)

(a) Paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1926.760(c).

(b) A controlled decking zone (CDZ) may be established in that area of the structure over six (6) feet and up to ten (10) feet above a lower level if metal decking is initially being installed and forms the leading edge of a work area. In each CDZ:

1. Subparagraph 2 of this paragraph shall apply in lieu of 29 C.F.R. 1926.760(c)(1); and

2. Each employee working at the leading edge in a CDZ shall be protected from fall hazards of ten (10) feet or more above a lower level.

History

• RELATES TO: KRS 338.015(1), (2), 29 C.F.R. 1926.750-1926.761
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorize the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 16 Ky.R. 1103; eff. 12-15-1989; Am. 21 Ky.R. 2275; eff. 4-20-1995; 28 Ky.R. 2249; eff. 6-14-2002; 33 Ky.R. 1134; 1529; eff. 1-5-2007; 36 Ky.R. 179; 593; eff. 10-2-2009; 37 Ky.R. 1069; Am. 1437; eff. 1-3-2011; 47 Ky.R. 1648, 2384; eff. 8-3-2021.

803 KAR 2:418 Underground construction, caissons, cofferdams, and compressed air {#sec-803-kar-2-418 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:418}

Section 1. Definitions.

(1) "Assistant secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

(5) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as modified by the definitions established in Section 1 of this administrative regulation, the construction industry shall comply with the following federal regulations published by the Office of the Federal Register, National Archives and Records Services, General Services Administration:

(1) 29 C.F.R. 1926.800 - 1926.804, and 1926 Subpart S, Appendix A; and

(2) The amendments to 29 C.F.R. 1926.800 as published in the May 14, 2019 Federal Register, Volume 84, Number 93.

History

• RELATES TO: KRS 338.015(1), (2), (3), 338.051, 338.061, 29 C.F.R. 1926.800-1926.804, and 1926 Subpart S, Appendix A
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. 29 C.F.R. 1926.800-1926.804 and 1926 Subpart S, Appendix A establish federal requirements relating to underground construction, caissons, cofferdams, and compressed air. This administrative regulation establishes the underground construction, caissons, cofferdams, and compressed air standards enforced by the Department of Workplace Standards in the construction industry.
• History: 16 Ky.R. 716; eff. 12-15-89; 1700; eff. 4-12-90; 20 Ky.R. 2722; eff. 5-11-94; 25 Ky.R. 1173; eff. 1-19-99; 33 Ky.R. 3065; 3378; eff. 6-1-07; 37 Ky.R. 1071; 1438; eff. 1-3-2011; TAm eff. 9-8-2011; 39 Ky.R. 161; eff. 10-4-2013; 46 Ky.R. 2718; 47 Ky.R. 63; eff. 9-29-2020; TAm eff. 11-10-2022.

803 KAR 2:419 Demolition {#sec-803-kar-2-419 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:419}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as modified by the definitions established in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926, Subpart T, Demolition, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1926.850 - 860
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 16 Ky.R. 1104; eff. 12-15-1989; TAm eff. 8-9-2007; 37 Ky.R. 1073; Am. 1438; eff. 1-3-2010; 40 Ky.R. 163; 545; eff. 10-4-2013; 48 Ky.R. 2521; eff. 10-4-2022.

803 KAR 2:420 Blasting and use of explosives {#sec-803-kar-2-420 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:420}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Secretary" is defined by KRS 338.015(12).

(5) "Secretary of Education and Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926, Subpart U, Blasting and the Use of Explosives, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS 338.051(3), 338.061, 29 C.F.R. 1926.900-.914
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards enforced by the Department of Workplace Standards in the construction industry.
• History: 16 Ky.R. 717; eff. 12-15-89; 20 Ky.R. 2723; eff. 5-11-94; 25 Ky.R. 2461; eff. 6-16-99; TAm eff. 8-9-2007; TAm eff. 9-8-2011; 47 Ky.R. 1482; 2384; eff. 8-3-2021; TAm eff. 11-10-2022.

803 KAR 2:421 29 C.F.R. Part 1926.950-968 {#sec-803-kar-2-421 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:421}

Section 1. Definitions.

(1) "Assistant Secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

(5) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as modified by the definitions established in Section 1 of this administrative regulation, the construction industry shall comply with the following federal regulations published by the Office of the Federal Register, National Archives and Records Services, General Services Administration:

(1) 29 C.F.R. 1926.950-1926.967, effective July 1, 2015; and

(2) The amendments to 29 C.F.R. 1926 Subpart V as published in the October 5, 2015 Federal Register, Volume 80, Number 192.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1926.950 – 968
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) and 338.061 authorize the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health rules, administrative regulations, and standards. This administrative regulation contains those standards to be enforced by the Division of Occupational Safety and Health Compliance in the area of construction.
• History: 16 Ky.R. 719; eff. 12-15-1989; 21 Ky.R. 2276; eff. 4-20-1995; TAm eff. 8-9-2007; 37 Ky.R.1075; 1438; eff. 1-3-2011; 40 Ky.R. 2849; eff. 9-5-2014; 42 Ky.R. 121; 684; eff. 10-2-2015; 42 Ky.R. 2974; eff. 9-2-2016; TAm eff. 11-10-2022; Crt eff. 8-31-2023.

803 KAR 2:422 Rollover protective structures; overhead protection {#sec-803-kar-2-422 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:422}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "Assistant secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "C.F.R." means Code of Federal Regulations.

(4) "Director" means Director, Division of Occupational Safety and Health Compliance, Kentucky Education and Labor Cabinet.

(5) "Employee" is defined in KRS 338.015(2).

(6) "Established federal standard" is defined by KRS 338.015(10).

(7) "National Consensus Standard" is defined by KRS 338.015(9).

(8) "Secretary of Education and Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(9) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

(10) "U.S. Department of Labor" means Kentucky Education and Labor Cabinet, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601, or U.S. Department of Labor.

Section 2. The construction industry shall comply with the following federal regulations published by the Office of the Federal Register, National Archives and Records Services, General Services Administration, except as modified by the definitions in Section 1 of this administrative regulation:

(1) 29 C.F.R. 1926.1000 through 29 C.F.R. 1926.1003, and Appendix; and

(2) The amendments to 29 C.F.R.1926 Subpart W published in the May 14, 2019 Federal Register, Volume 83, Number 93.

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1926.1000 -1003
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman of the board to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards enforced by the Department of Workplace Standards in the construction industry relating to rollover protective structures and overhead protection.
• History: 16 Ky.R. 1105; eff. 12-15-89; 23 Ky.R. 1744; eff. 12-13-96; 33 Ky.R. 1136; 1530; eff. 1-5-2007; 34 Ky.R. 631; eff. 12-7-2007; TAm eff. 9-8-2011; 46 Ky.R. 2720; eff. 9-29-2020; TAm eff. 11-10-2022.

803 KAR 2:424 Diving {#sec-803-kar-2-424 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:424}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "Assistant Secretary of Education and Labor" means Secretary, Education and Labor Cabinet or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "C.F.R." means Code of Federal Regulations.

(4) "Employee" is defined by KRS 338.015(2).

(5) "Employer" is defined by KRS 338.015(1).

(6) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as established in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926 Subpart Y, Diving, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1926.1071-1926.1091
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes diving standards enforced by the Department of Workplace Standards in construction.
• History: 20 Ky.R. 2751; eff. 5-11-1994; 21 Ky.R. 121; eff. 9-12-1994; 2278; eff. 4-20-1995; 23 Ky.R. 3950; eff. 7-17-1997; 33 Ky.R. 3067; 3378; eff. 6-1-2007; TAm eff. 9-8-2011; 47 Ky.R. 1650; 2386; eff. 8-3-2021; 47 Ky.R. 1650; 2386; eff. 8-3-2021; TAm eff. 11-10-2022.

803 KAR 2:425 Toxic and hazardous substances {#sec-803-kar-2-425 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:425}

Section 1. Definitions.

(1) "Act" means KRS Chapter 338.

(2) "Assistant secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "C.F.R." means Code of Federal Regulations.

(4) "Director" means Director, Division of Occupational Safety and Health Compliance, Kentucky Education and Labor Cabinet.

(5) "Employee" is defined in KRS 338.015(2).

(6) "Established federal standard" is defined by KRS 338.015(10).

(7) "National Consensus Standard" is defined by KRS 338.015(9).

(8) "Secretary of Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(9) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

(10) "U.S. Department of Labor" means Kentucky Education and Labor Cabinet 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601, or U.S. Department of Labor.

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, the construction industry shall comply with the following federal regulations published by the Office of the Federal Register, National Archives and Records Services, General Services Administration:

(1) 29 C.F.R. 1926.1101 through 1926.1153; and

(2) The amendments to 29 C.F.R. 1926 Subpart Z as published in the May 14, 2019 Federal Register, Volume 84, Number 93.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1926.1101-1926.1153
• STATUTORY AUTHORITY: KRS 338.051, 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman of the board to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes the general standards enforced by the Department of Workplace Standards in the construction industry.
• History: 20 Ky.R. 2751; eff. 5-11-1994; 21 Ky.R. 121; eff. 9-12-1994; 2278; eff. 4-20-1995; 23 Ky.R. 3950; eff. 7-17-1997; 33 Ky.R. 3067; 3378; eff. 6-1-2007; TAm eff. 9-8-2011; 43 Ky.R. 1683; 1954; eff. 6-2-2017; 44 Ky.R. 337; eff. 11-3-2017; 46 Ky.R. 2722; 47 Ky.R. 64; eff. 9-29-2020; TAm eff. 11-10-2022.

803 KAR 2:426 Stairways and ladders {#sec-803-kar-2-426 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:426}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as modified by Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926, Subpart X, Stairways and Ladders published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS Chapter 338, 29 C.F.R. 1926.1050 - 1060
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health regulations and authorizes the chairman to reference federal standards without approval if necessary to meet federal time requirements. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 48 Ky.R. 2143; eff. 7-5-2022.

803 KAR 2:435 Supply lines in excess of 600 volts {#sec-803-kar-2-435 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:435}

Section 1. Definitions.

(1) "Disconnected" means disconnected from any electrical source or supply.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Guarded" means protected by personnel, covered, fenced, or enclosed by means of suitable castings, barrier, rails, screens, mats, platforms, or other suitable devices in accordance with standard barricading techniques designed to prevent dangerous approach or contact by persons or objects but does not include insulated wires not otherwise protected.

(5) "Hold cards" or "hold tags" means a card or tag-type device, usually having a predominant color of white or red that warns against or cautions against the operation of a particular switch, device, circuit, tool, machine, or other piece of equipment.

(6) "Near" means a distance no closer than shown in the table in Section 2 of this administrative regulation.

(7) "Qualified person" means a person who, because of experience and training is familiar with the construction and operation of the apparatus or equipment and the hazards involved in the performance of the job.

Section 2. Safety and Testing.

(1) This administrative regulation shall apply to nonutility electrical employees engaged in electrical construction of electrical conductors and equipment rated at 600 volts and above.

(2) Energized conductors and equipment.

(a) Only qualified employees shall work on or near high voltage conductors or equipment.

(b) Personal protective equipment shall be provided by the employer and used by the employee when working on or near energized, ungrounded high voltage conductors, or equipment.

(3)

(a) An employee shall not approach or take any conductive object, without an approved insulating handle, within the minimum distance specified in the Minimum Clear Distance From Live Parts table below, unless the energized part is insulated or guarded from the employee, or the employee is effectively insulated from the energized part.

(b) Rubber gloves, and sleeves if necessary, rated for the voltage involved shall be considered effective insulation of the employee from the energized part.

Section 3. Deenergized conductor or equipment.

(1) Existing conditions shall be determined before starting work on an electrical conductor or equipment.

(2) Before any work is performed, all electrical switches, breakers, and associated disconnecting devices shall be opened, made inoperable and hold tagged out by the person in charge.

(3) Employees shall be trained and thoroughly instructed in the tagging procedure.

(4) One (1) qualified person such as the foreman, general foreman, or first class electrician of each crew shall be responsible for attaching hold tags or hold cards to the disconnecting means.

(5) If more than one (1) crew is involved in the work, multiple hold tags or hold cards shall be placed in the handle of the disconnecting equipment.

(6) The use of such tags shall be respected.

(7) Equipment or items tagged shall not be activated or used without full and proper authority of the responsible person whose signature appears on the tag.

(8) Conductors shall be short-circuited and grounded wherever possible.

(9) Capacitors may be components of apparatus of the disconnected electrical system.

(10) Before employees are allowed to work, the capacitors shall be discharged, short-circuited, and grounded.

(11) If deenergizing conductors and equipment and the means of disconnecting from the energy source is not visibly open, a voltage test shall be made before starting work.

(12) An operational check shall be made of the voltage tester prior to and following the voltage test to determine reliability of the testing device.

(13) The test device shall be handled and used while wearing or using approved protective equipment during the test.

(14) All conductors and equipment shall be treated as energized until tested, short-circuited and effectively grounded except if the circuit involved is isolated from all possible sources of energizing voltage from another circuit, induced voltage or back feed.

(15) The voltage condition of deenergized conductors and equipment shall be determined with testing equipment designed for the applicable voltage.

(16) Upon completion of work on deenergized conductors and equipment, the person responsible shall ascertain that all employees under her or his jurisdiction are clear and that all protective short-circuit and grounding lines are removed.

(17) The qualified person shall then remove her or his hold tag.

(18) Only at this time shall conductors and equipment be reenergized.

History

• RELATES TO: KRS Chapter 338
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 3 Ky.R. 794; Am. 4 Ky.R. 106; eff. 8-3-1977; 234; eff. 2-1-1978; 323; eff. 5-3-1978; 7 Ky.R. 917; eff. 7-1-1981; 10 Ky.R. 302; eff. 12-2-1983; TAm eff. 8-9-2007; TAm eff. 9-8-2011; Recodified from 803 KAR 2:016, 1-7-2021; 47 Ky.R. 2710; 48 Ky.R. 817; eff. 11-30-2021.

803 KAR 2:440 Cranes and derricks in construction {#sec-803-kar-2-440 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:440}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Secretary of Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(5) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

Section 2. Except as modified by the definitions in Section 1 and the requirements in Section 3 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926, Subpart CC, Cranes and Derricks in Construction published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

Section 3. Fall Protection.

(1)

(a) The language in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1926.1423(e)(1)(iii).

(b) On horizontal lattice booms where the fall distance is ten (10) feet or more.

(2)

(a) The language in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1926.1423(f).

(b) For assembly/disassembly work, the employer shall provide and ensure the use of fall protection equipment for any employee who is on a walking/working surface with an unprotected side or edge more than ten (10) feet above a lower level, except when the employee is at or near draw-works (when the equipment is running), in the cab, or on the deck.

(3)

(a) The language in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1926.1423(h)(2).

(b) For erecting, climbing, and dismantling work, the employer shall provide and ensure the use of fall protection equipment for any employee who is on a walking/working surface with an unprotected side or edge more than ten (10) feet above a lower level.

History

• RELATES TO: KRS 338.015, 29 C.F.R. 1926.1400-1926.1441
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes the standards that are enforced by the Department of Workplace Standards in construction.
• History: 37 Ky.R. 1118; 1440; eff. 1-3-2011; 38 Ky.R. 120; 598; eff. 10-7-2011; 40 Ky.R. 2854; 41 Ky.R. 274; eff. 9-5-2014; 42 Ky.R. 124; 685; eff. 10-2-2015; 44 Ky.R. 1663; 2018; eff. 4-6-2018; 45 Ky.R. 2478; 2901; eff. 5-3-2019; Recodified from 803 KAR 2:505, 1-7-2021; 47 Ky.R. 2712; 48 Ky.R. 818; eff. 11-30-2021; TAm eff. 11-10-2022.

803 KAR 2:445 Confined spaces in construction {#sec-803-kar-2-445 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:445}

Section 1. Definitions.

(1) "C.F.R." means Code of Federal Regulations.

(2) "Employee" is defined by KRS 338.015(2).

(3) "Employer" is defined by KRS 338.015(1).

(4) "Established federal standard" is defined by KRS 338.015(10).

(5) "Secretary of Education and Labor" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(6) "Standard" means "occupational safety and health standard," which is defined by KRS 338.015(3).

(7) "U.S. Department of Labor" means U.S. Department of Labor or Kentucky Education and Labor Cabinet, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601.

Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, the construction industry shall comply with 29 C.F.R. 1926, Subpart AA, Confined spaces in construction, published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS 338.015, 29 C.F.R. 1926.1200-1926.1213
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards that are enforced by the Department of Workplace Standards in construction.
• History: 10 Ky.R. 330; 619; eff. 12-2-1983; 20 Ky.R. 638; 968; eff. 11-8-1993; 23 Ky.R. 1684; eff. 12-13-1996; 42 Ky.R. 110, 680; eff. 10-2-2015; Recodified from 803 KAR 2:200, 3-16-2021; 48 Ky.R. 2522; eff. 10-4-2022; TAm eff. 11-10-2022.

803 KAR 2:500 Maritime employment {#sec-803-kar-2-500 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:500}

Section 1. Definitions.

(1) "Administration" means the Kentucky Education and Labor Cabinet or Department of Workplace Standards.

(2) "Assistant secretary" means Secretary, Education and Labor Cabinet, or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(3) "C.F.R." means Code of Federal Regulations.

(4) "Employee" is defined by KRS 338.015(2).

(5) "Employer" is defined by KRS 338.015(1).

(6) "U.S. Department of Labor" means U.S. Department of Labor or Kentucky Education and Labor Cabinet, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601.

Section 2. Except as modified by the definitions established in Section 1 of this administrative regulation, the maritime industry shall comply with the following federal regulations published by the Office of the Federal Register, National Archives and Records Services, General Services Administration:

(1) 29 C.F.R. Part 1915, relating to occupational safety and health standards for shipyard employment;

(2) 29 C.F.R. Part 1917, relating to maritime terminals;

(3) 29 C.F.R. Part 1918, relating to safety and health regulations for longshoring;

(4) 29 C.F.R. Part 1919, relating to gear certification; and

(5) The revisions to 29 C.F.R. Part 1915 as published in the May 14, 2019 Federal Register, Volume 84, Number 93.

History

• RELATES TO: KRS 338.015, 29 C.F.R. 1915, 1917, 1918, 1919
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman of the board to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. 29 C.F.R. Parts 1915, 1917, 1918, and 1919 establish federal requirements relating to maritime employment. This administrative regulation establishes maritime employment standards enforced by the Department of Workplace Standards in the maritime industry.
• History: 16 Ky.R. 720; eff. 12-15-1989; 20 Ky.R. 646; eff. 11-8-1993; 2727; eff. 5-11-1994; 21 Ky.R. 122; eff. 9-12-1994; 2280; eff. 4-20-1995; 22 Ky.R. 1151; 1474; eff. 2-12-1996; 2070; eff. 7-5-1996; 23 Ky.R. 1746; eff. 12-13-1996; 3955; eff. 7-17-1997; 24 Ky.R. 1161; eff. 1-12-1998; 2160; eff. 7-13-1998; 25 Ky.R. 2465; eff. 6-16-1999; 26 Ky.R. 655; eff. 11-15-1999; 27 Ky.R. 2903; 3250; eff. 6-8-2001; 29 Ky.R. 2357; eff. 5-15-2003; 31 Ky.R. 1736; eff. 7-1-2005; 32 Ky.R. 563; 878; eff. 12-2-2005; 33 Ky.R. 1141; 1531; eff. 1-5-2007; 3072; eff. 6-1-2007; 34 Ky.R. 2050; eff. 5-2-2008; 35 Ky.R. 1912; eff. 5-1-2009; 36 Ky.R. 184; 594; eff. 10-2-2009; 37 Ky.R. 161; eff. 10-1-2010; 38 Ky.R. 118; eff. 10-7-2011; 38 Ky.R. 2046; eff. 8-31-2012; 40 Ky.R. 166; eff. 10-4-2013; 2852; eff. 9-5-2014; 42 Ky.R. 2978; eff. 9-2-2016; 43 Ky.R. 1685; eff. 6-2-2017; 46 Ky.R. 2724; eff. 9-29-2020; 46 Ky.R. 2724; eff. 9-29-2020; TAm eff. 11-10-2022.

803 KAR 2:600 Occupational safety and health standards for agriculture {#sec-803-kar-2-600 omnilex-key=us-ky-regs-official--title-803--803 KAR 2:600}

Section 1.

(1) "Assistant secretary" means Secretary, Education and Labor Cabinet or Commissioner, Department of Workplace Standards, Education and Labor Cabinet.

(2) "C.F.R." means Code of Federal Regulations.

(3) "Employee" is defined by KRS 338.015(2).

(4) "Employer" is defined by KRS 338.015(1).

(5) "U.S. Department of Labor" means Kentucky Education and Labor Cabinet, Mayo-Under Building, 500 Mero Street, 3rd Floor, Frankfort, Kentucky 40601 or U.S. Department of Labor.

Section 2. Except as established in Section 1, the agriculture industry shall comply with 29 C.F.R. Part 1928 published by the Office of the Federal Register, National Archives and Records Services, General Services Administration.

History

• RELATES TO: KRS 338.051, 338.061, 29 C.F.R. 1928
• STATUTORY AUTHORITY: KRS 338.051(3), 338.061
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health administrative regulations and authorizes the chairman to reference federal standards without board approval if necessary to meet federal time requirements. KRS 338.061 authorizes the board to establish, modify, or repeal standards and reference federal standards. This administrative regulation establishes standards enforced by the Department of Workplace Standards in the agriculture industry.
• History: 16 Ky.R. 721; eff. 12-15-1989; 20 Ky.R. 648; eff. 11-8-1993; 21 Ky.R. 124; eff. 9-12-1994; 2283; eff. 4-20-1995; 23 Ky.R. 1748; eff. 1-9-1997; 33 Ky.R. 1143; 1802; eff. 2-2-2007; TAm eff. 9-8-2011; 38 Ky.R. 122; eff. 10-7-2011; TAm eff. 7-12-2012; 47 Ky.R. 1652; 2386; eff. 8-3-2021; TAm eff. 11-10-2022.

Chapter 3 Collective Bargaining and Arbitration

803 KAR 3:010 General rules of procedure {#sec-803-kar-3-010 omnilex-key=us-ky-regs-official--title-803--803 KAR 3:010}

Section 1. Purpose. These rules are hereby adopted to aid the State Labor Relations Board and interested parties in proceeding under the Fire Fighters Collective Bargaining Act. During the course of business, the board may waive or modify its rules with unanimous consent of the parties and the board or board agent. No waiver or modification of board rules shall be permitted contrary to specific statutory requirement.

Section 2. Policy. The policy of the state being primarily to encourage, promote and develop fair employment practices, both by employers and employees, these rules shall be so construed to facilitate the State Labor Relations Board in using its best and good faith efforts to adjust any disputes arising under this act.

Section 3. Definitions. Any terms used herein that are defined in the Fire Fighters Collective Bargaining Act shall have the meaning therein set forth.

Section 4. Proceedings Consolidated. Proceedings before the board may be consolidated in order to expedite the settling of the dispute with unanimous consent of the parties and the Board or Board agent.

Section 5. Construction. These rules and administrative regulations shall be liberally construed to effect the purpose of the act.

History

• RELATES TO: KRS 345.120
• STATUTORY AUTHORITY: KRS 345.120(7)
• NECESSITY, FUNCTION, AND CONFORMITY: The State Labor Relations Board is authorized by KRS 345.120(7) to promulgate uniform rules necessary to carry out its duties. The function of this administrative regulation is to establish general rules to be followed by the Board during its administrative functions. These rules are adopted to aid the State Labor Relations board and interested parties in proceeding under the Firefighters Collective Bargaining Act.
• History: 8 Ky.R. 421; Am. 687; eff. 4-6-77; Crt eff. 2-26-2020.

803 KAR 3:020 Election and certification of unit representatives {#sec-803-kar-3-020 omnilex-key=us-ky-regs-official--title-803--803 KAR 3:020}

Section 1. Scope. This chapter governs the general procedure relating to elections to determine a collective bargaining representative for all employees in a unit appropriate for that purpose.

Section 2. Petition for Election.

(1) Who may file. A petition to determine a collective bargaining representative or an appropriate collective bargaining unit may be filed by an individual, or by a labor organization acting on their behalf, or by the municipal employer or anyone lawfully authorized to act on the behalf of at least thirty (30) percent of the employees who have signed affiliation cards on the union showing proof of representation.

(2) Form, number of copies. The petition shall be prepared on a form furnished by the board and the original and five (5) copies thereof shall be signed and filed with the board.

(3) Contents. The petition shall include the following:

(a) The name, address and affiliation, if any, of the petitioner, and the name and telephone number of its principal representative.

(b) The name and address of the municipal employer involved, if the municipal employer is not the petitioner, and the name and telephone number of its principal representative.

(c) A description of the claimed appropriate collective bargaining unit specifying inclusions and exclusions, as well as the approximate number of supervisors in the unit.

(d) The names and addresses of any known labor organization who claim to represent firefighter personnel in the claimed appropriate collective bargaining unit.

(e) A brief statement setting forth the nature of the question that has arisen concerning representation.

(f) Any other relevant facts.

Section 3. Elections.

(1) Who shall conduct; extension of time for; method. All elections shall be conducted under the supervision of the board, which may extend the time within which any election shall be held. All elections shall be by secret ballot.

(2) Observers. Any party may be represented by observers, selected in accordance with such limitations as the board may prescribe.

(3) Challenge of voters. Any observer or board agent conducting the election may challenge, for good cause, the eligibility of any person to vote in the election. The ballots of such challenged person shall be impounded.

(4) Count and tally of ballots. Upon the conclusion of the election, the ballots shall be counted in the presence of and with the assistance of, the parties or their observers, and the board agent conducting the election shall cause to be furnished to the parties a tally of ballots.

(5) Inconclusive elections.

(a) When conducted and procedure. When more than one (1) proposed representative appears on the ballot and the results are inconclusive the Board shall conduct a run-off election as prescribed in KRS 345.060(3).

(b) Eligibility. The board may in its direction of run-off, in its discretion, maintain the same eligibility date or establish a new eligibility date.

Section 4. Certification of Results of Election. If challenged ballots are insufficient in number to affect the results, and if no run-off election is to be held and no timely objections are filed as provided below, the board shall forthwith issue to the parties a certification of the results of the election.

Section 5. Objection to Election.

(1) Filing; forms; copies. Within five (5) days after the tally of ballots has been furnished, any party may file with the board objections to the conduct of the election or conduct affecting the results of the election. Such objections shall be in writing and shall contain a brief statement of facts upon which the objections are based. An original and five (5) copies of such objections shall be signed and filed with the board, the original being sworn to.

(2) Service on other parties. The party filing such objections shall at the same time serve a copy upon each of the other parties.

Section 6. Hearing on Challenges or Objections. If challenges, which affect the results of the election, or objections raise a substantial question which cannot be resolved without a hearing, the board may issue and serve a notice of hearing on said issues:

(1) Hearing procedure. The rules relating to conduct of hearings on election petitions shall govern hearing on challenges or objections.

(2) Board action. After the close of the hearing, the board may proceed either forthwith upon the record, or after, oral argument or the submission of briefs, as it may deem proper, to determine issues with regard to the challenges or objections, as the case may be, either sustaining or overruling the challenges to objections:

(a) If the board directs that challenged ballots be opened and counted, said ballots shall be opened and counted, and the board shall issue a revised tally and shall forthwith issue a certification of election.

(b) If the board should sustain the objections it may direct a new election to be held at such time and under such circumstance and conditions it deems appropriate.

(c) If the board should overrule the objections it shall forthwith issue a certification of the election.

History

• RELATES TO: KRS 345.060(1)(b), 345.120
• STATUTORY AUTHORITY: KRS 345.120(7)
• NECESSITY, FUNCTION, AND CONFORMITY: The State Labor Relations Board is authorized by KRS 345.120(7) to promulgate uniform rules necessary to carry out its duties. This administrative regulation is to establish rules for the State Labor Relations Board regarding the election and certification of representatives for firefighting units to carry out the purpose and intent of the Firefighters Collective Bargaining Act.
• History: 3 Ky.R. 422; Am. 687; eff. 4-6-77; Crt eff. 2-26-2020.

803 KAR 3:030 Unfair labor practice complaints {#sec-803-kar-3-030 omnilex-key=us-ky-regs-official--title-803--803 KAR 3:030}

Section 1. Who may File a Complaint. A complaint that a person has engaged or is engaging in an unfair labor practice may be submitted by any party in interest. Such complaint shall be in writing upon a form provided by the board, the original being signed and sworn to before any person authorized to administer oaths or acknowledgments. Five (5) additional copies of the complaint shall be filed.

Section 2. Complaint. The complaint shall include:

(1) The full name and address of the person making the complaint, hereinafter referred to as the complainant;

(2) The full name and address of the person against whom the complaint is made; hereinafter referred to as the respondent;

(3) A clear and concise statement of the facts constituting the alleged unfair labor practice or practices, including the time and place of occurrence of particular acts and the names of all persons involved.

Section 3. Service of Complaint. On the filing of a complaint, the board shall immediately serve on all parties in interest a copy thereof and a notice of a hearing by return receipt mail to their last known post office address. The hearing will be held not less than five (5) days after notice is served upon the respective parties.

Section 4. Answer. The person or persons complained of may file an answer before the hearing or at the hearing. The answer shall contain a clear and concise statement of the facts which constitute a defense. The answer shall specifically admit, deny, or explain each allegation of the complaint, unless the person complained of shall be without knowledge, in which case he shall so state. Any allegation in the complaint not specifically denied in the answer, unless it is stated in that answer that the respondent is without knowledge, shall be deemed to be admitted as true. If no answer is filed, its absence shall be deemed a general denial.

Section 5. Filing and Service of Answer. If an answer is filed, the original and five (5) copies of the answer shall be signed and filed with the board, the original being sworn in. The respondent shall serve a copy upon each of the other parties.

Section 6. Amendment to Complaint and Answer. Any complaint or answer may be amended at any time prior to the issuance of a final order by the board.

Section 7. Notice of Hearing. Notice of the time and place of a hearing shall be given to all parties. The hearing will be held in the office of the Office of Kentucky Department of Labor, Louisville, Kentucky except as otherwise agreed by the board and the parties.

Section 8. Hearing Procedure. A hearing will be held at specified times in which the claimants shall complete proof as far as possible. Upon request of either party, extra time to complete proof may be granted. Hearings will be conducted in a manner properly suited to ascertain the substantial rights of the parties and to determine the outcome fairly and expeditiously.

Section 9. Postponement of Hearing. Postponements, ordinarily will not be allowed, except in case of an extreme emergency or in unusual circumstances. No postponements in excess of twenty (20) days shall be allowed.

Section 10. Examination of Witnesses. Witnesses shall be examined under oath. Opposing parties shall have the right to cross examine any witness whose testimony is introduced by an adverse party.

Section 11. Stipulation of Fact. In any such proceeding, stipulations of fact may be introduced into evidence with respect to any issue.

Section 12. Exhibits. In the absence of objection by another party, exhibits shall be entered as evidence and marked with an appropriate designation.

Section 13. Rules of Evidence. Hearings before the board shall not be governed by the rules of evidence prevailing in the courts of the Commonwealth of Kentucky. However, due regard will be had for generally accepted rules of administrative agency hearings in the Commonwealth of Kentucky.

Section 14. Standards of Conduct. All persons appearing in any proceeding shall conform to the standards of ethical conduct. Impetuous conduct at a hearing will not be tolerated and will be considered as grounds for exclusion.

Section 15. Computation of Time. In computing any period of time prescribed or allowed in these rules, the day from which the designated period begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, and federal or state holidays shall not be counted.

Section 16. Decisions of the Board. After the close of a hearing, the board shall make and file findings of fact and an order which shall be signed by a board member and dated. The order, which shall state the determination as to the rights of the parties, shall either dismiss or sustain the complaint in whole or in part; or require the respondent to cease and desist from prohibited practices and take such affirmative action as will affect the policies and intent of KRS 345.010 to 345.130.

Section 17. Review of Findings.

(1) Right to file, time. Within twenty (20) days from the date that a copy of the findings of fact, conclusions of law and order of the single member or examiner was mailed to the last known address of the parties in interest, any party in interest, who is dissatisfied with such findings of fact, conclusions of law and order, may file a written petition with the board, and at the same time cause copies thereof to be served upon the other parties, to review such findings of fat, conclusions of law or order. If the board is satisfied that a party in interest has been prejudiced because of exceptional delay in the receipt of a copy of any findings of fact, conclusion of law or order, it may extend time another twenty (20) days of filing the petition for review.

(2) Petition for review. This shall briefly state the grounds of dissatisfaction with the findings of fact, conclusions of law and order, and such review may be requested on the following grounds;

(a) That any finding of material fact is clearly erroneous is established by the clear and satisfactory preponderance of the evidence and prejudicially affects the right of the petitioner designating all relevant portions of the record.

(b) That a substantial question of law or administrative policy is raised by any necessary legal conclusions in such order.

(c) That the conduct of the hearings or the preparation of the findings, conclusion of law or order involved a prejudicial procedural error, specifying in detail the nature thereof and designated portions of the record, if appropriate.

History

• RELATES TO: KRS 345.070, 345.120
• STATUTORY AUTHORITY: KRS 345.120(7)
• NECESSITY, FUNCTION, AND CONFORMITY: The State Labor Relations Board is authorized by KRS 345.120(7) to promulgate uniform rules necessary to carry out its duties. The function of this administrative regulation is to establish general rules for the Board relating to the administrative and adjudicatory handling of unfair labor practice complaints. This administrative regulation is to establish general rules for the State Labor Relations Board relating to the administrative and adjudicatory handling of unfair labor practice complaints filed under the Firefighters Collective Bargaining Act.
• History: 3 Ky.R. 423; Am. 688; eff. 4-6-77; TAm eff. 8-9-2007; Crt eff. 2-26-2020.

803 KAR 3:040 Deadlocked negotiations petition {#sec-803-kar-3-040 omnilex-key=us-ky-regs-official--title-803--803 KAR 3:040}

Section 1. The petition may be filed by any party to the controversy, and shall be on a form furnished by the board; the original being notarized. Five (5) additional copies shall be filed with the board. The party filing the petition, shall, at the same time, cause a copy of said petition to be served on two (2) other parties or its representative, by return receipt mail.

Section 2. Comments. The petition shall include the following:

(1) The name, address and affiliation of the labor organization involved, and its principal representative.

(2) The name, address and principal representative of the municipal employer involved.

(3) A description of the certified or recognized collective bargaining unit involved, as well as the approximate number of employees in such unit.

(4) A statement setting forth the basis of the petition, either that after a reasonable period of negotiation the parties are deadlocked; or refused to meet and negotiate in good faith at reasonable times a bona fide effort to arrive at a settlement, and at least thirty (30) days has passed since beginning of negotiations.

(5) A statement to the effect that, within the knowledge of the petitioner, said deadlock or failure or refusal to meet and negotiate in good faith in a bona fide effort to arrive at a settlement, does not involve discipline or discharge cases under civil service provisions of a state or local ordinance.

(6) A clear and concise statement of facts constituting said alleged deadlock, or said failure or refusal to meet and negotiate in good faith.

(7) A statement as to whether or not the municipal employer involved has established fact-finding procedures, (if so, the petitioner must attach a copy of such fact-finding procedures).

(8) Any other relevant facts.

Section 3. Withdrawal of Board. A petition may be withdrawn only with the consent of the board under such conditions as the board may establish to effectuate the policies of the law.

Section 4. Commissioner of Labor's Investigations.

(1) Scope. After a petition has been filed, the commissioner shall make an investigation to determine whether or not the parties are deadlocked after a reasonable period of negotiations; of whether or not either party failed or refused to meet and negotiate in good faith at reasonable times a bona fide effort to arrive at a settlement.

(2) Nature. In such investigation the commissioner may assign an agent to conduct an informal investigation to assist the commissioner in making his determination; or the commissioner may conduct a formal hearing for that purpose; or it may utilize both procedures.

Section 5. Notice of Hearing.

(1) When issued, contents. If it should appear to the commissioner that a hearing is warranted, the commissioner shall issue and serve, upon each party, a notice of hearing at a place feasible in the jurisdiction of the employer involved, on a date and at such time therein fixed.

(2) Amendment or withdrawal. Any such notice of hearing may be amended or withdrawn at any time before the close of the hearing by the commissioner or his agent conducting the hearing.

Section 6.

(1) Scope and Nature. The commissioner's hearing shall be limited to pertinent matters necessary to establish the facts to determine whether, after a reasonable period of negotiation, the parties are deadlocked; or whether the municipal employer or labor organization has failed or refused to meet and negotiate in good faith at reasonable times in a bona fide effort to arrive at a settlement.

(2) Who shall conduct. The hearing may be conducted by the commissioner or an agent designated by the commissioner. At any time, a hearing officer may be substituted for the hearing officer previously presiding.

Section 7. Certification of Results of Investigation.

(1) When issued. After consideration of either the report of the commissioner conducting the informal investigation, or the record adduced in the hearing, or both, the commissioner, shall issue a certification of the results of said investigation with respect to the question as to whether or not a fact-finding should be initiated.

(2) Contents. Said certification shall contain findings of fact and conclusions with regard to the investigation, whether initiating fact-finding or dismissing the petition, or such other action, consistent with the intent of the law.

(3) Appointment of fact-finders. If the certification requires that fact-finding be initiated the commissioner shall within five (5) days appoint an impartial chairman for the fact-finding panel. Additionally, the other two (2) members shall be one (1) member named by the labor organization and one (1) by the employer.

(4) Service on the parties, record. A copy of the commissioner's certification shall be immediately served upon the parties, and, if a fact-finder is designated, upon the fact-finders selected. The commissioner shall also therewith submit to the fact-finders a copy of any written informal investigation report, and a copy of the record before the commissioner in the matter.

Section 8. Hearing Before the Fact-finders.

(1) Notice of Hearing. Following the receipt of notification of his appointment, the impartial chairman shall issue and serve, upon each of the parties, a notice of hearing at a place feasible in the jurisdiction of the municipality involved at a date and at such time as therein fixed.

(2) Amendment or withdrawal. Any such notice of hearing may be amended or withdrawn at any time before the close of the hearing by the fact-finders.

(3) Scope and nature of hearing. The hearing shall be public; and concern pertinent matters necessary for the fact-finders assist him in reaching his recommendation for the solution of the dispute.

(4) Rescheduling hearing. Upon its own motion, or upon proper cause shown by any of the parties, the fact-finders may, prior to the opening of the hearing, reschedule the date of such hearing.

(5) Transcripts. The hearings shall be stenographically reported and transcribed. Such transcripts shall be the sole official transcript. Costs involved for the original of such transcript shall be borne equally by the parties. Copies of the transcript shall be available to the parties and to the public at rates set by the board.

Section 9. Fact-finding Report.

(1) Issuance. After the close of the hearing the fact-finders shall prepare and make a fact-finding report within 120 days from the date the petition to initiate the fact-finding procedure was received by the secretary.

(2) Contents. Such report shall contain:

(a) A statement of findings of fact and conclusions, upon all material issues presented on the record;

(b) Recommendations for the solution of the dispute; and

(c) A memorandum stating the reasons and basis for such findings, conclusions and recommended solutions.

(3) Service. Upon the completion of his report the fact-finding panel shall cause copies of same to be served on the parties as well as the board, and the Commissioner of the Department of Labor.

Section 10. Compensation of Fact-finders. The fact-finding proceeding shall be entitled to a per diem compensation for days spent in hearing in a sum not to exceed fifty (50) dollars per day and for days spent in preparation and issuance of his report in a sum not to exceed fifty (50) dollars per day. The fact-finders shall also be compensated for ordinary expenses occurred in the proceedings.

History

• RELATES TO: KRS 345.080, 345.120
• STATUTORY AUTHORITY: KRS 345.120(7)
• NECESSITY, FUNCTION, AND CONFORMITY: The State Labor Relations Board is authorized by KRS 345.120(7) to promulgate uniform rules necessary to carry out its duties. The function of this administrative regulation is to establish rules for the board relating to their investigatory, administrative and adjudicatory handling of fact-findings as to whether firefighters or their representatives and their employers are deadlocked in negotiations. This administrative regulation is to establish rules for the State Labor Relations Board relating to their investigatory, administrative and adjudicatory handling of fact-findings as to whether firefighters or their representatives and their employers are deadlocked in negotiations, in order to carry out the purpose and intent of the Firefighters Collective Bargaining Act.
• History: 3 Ky.R. 424; Am. 690; eff. 4-6-77; TAm eff. 8-9-2007; Crt eff. 2-26-2020.

803 KAR 3:060 Procedures for electing and certifying exclusive representatives of police officers employed by urban-county or consolidated local governments and firefighter personnel, firefighters, or corrections personnel employed by urban-county governments {#sec-803-kar-3-060 omnilex-key=us-ky-regs-official--title-803--803 KAR 3:060}

Section 1. Definitions.

(1) "Appropriate Collective Bargaining Unit" means a group of police officers, firefighter personnel, firefighters, or corrections personnel, as determined by the Cabinet considering the factors outlined in KRS 67A.6905(2) and KRS 67C.408(2), which is the subject of a petition for election.

(2) "Commissioner" is defined in KRS 67A.6901(1) and 67C.400(5).

(3) "Cross petition for election" means a petition authorized by KRS 67A.6905(1) or 67C.408(1) seeking to intervene in a pending petition to elect an exclusive representative of an appropriate collective bargaining unit.

(4) "Cross petitioner" means a person, organization, or employer, authorized by KRS 67A.6905(1) and 67C.408(1) to request an election for an exclusive representative of an appropriate collective bargaining unit, who files a cross petition for election.

(5) "Cabinet" is defined in KRS 67A.6901(3) and 67C.400(1).

(6) "Exclusive representative" is defined in KRS 67A.6901(4) and 67C.400(3).

(7) "Labor Organization" is defined in KRS 67A.6901(7) and 67C.400(2).

(8) "Notice of Election" means a notice prepared by the Cabinet containing the details of an election for an exclusive representative, including the appropriate collective bargaining unit; voting eligibility criteria; date, hours, method, and location of the election; sample ballot; and effect of the vote.

(9) "Petition for election" means a petition authorized by KRS 67A.6905(1) or 67C.408(1) requesting an election for an exclusive representative of an appropriate collective bargaining unit.

(10) "Petitioner" means a person, group, organization, or employer, authorized by KRS 67A.6905(1) and 67C.408(1) to request an election for an exclusive representative of an appropriate collective bargaining unit, who files a petition for election.

Section 2. Petition for Election.

(1) An original and three (3) copies of a petition for election shall be filed with the Cabinet and shall include the following:

(a) The petitioner's name, address, and affiliation, if any, along with the name and telephone number of the petitioner's principal representative;

(b) The name and address of the urban-county or consolidated local government employer, if the employer is not the petitioner, along with the name and telephone number of the employer's principal representative;

(c) A description of the claimed appropriate collective bargaining unit specifying the following:

1. The classifications of employees included and excluded;

2. The approximate number of employees;

3. The interests the employees have in common regarding wages, hours, and other working conditions; and

4. The history of collective bargaining among employees;

(d) The name and address of any known labor organization that represents police officers, firefighter personnel, firefighters, or corrections personnel in the claimed appropriate collective bargaining unit;

(e) A clear and concise statement setting forth the issues raised by the petition, including the proof required by KRS 67A.6905(1)(a) through (b) or 67C.408(1)(a) through (b);

(f) Any other relevant facts; and

(g) The petitioner's signature and a declaration, under penalty of perjury, by the person signing the petition that the contents of the petition are true and correct to the best of the person's knowledge.

(2) The party filing a petition, cross petition, or other document permitted or required by this administrative regulation shall serve a copy on all affected parties.

(3) Within five (5) days of the date a petition for election is filed, the Cabinet shall notify in writing any affected party identified in the petition.

Section 3. Cross Petition for Election.

(1) A cross petition for election shall be filed within fifteen (15) days of the date the petition for election is filed with the Cabinet.

(2) A cross petition for election shall be in the same form and contain the same information required of a petition for election outlined in Section 2 of this administrative regulation.

(3) Within five (5) days of the date a cross petition for election is filed, the Cabinet shall notify in writing any affected party identified in the cross petition for election.

Section 4. Duty to Furnish Information and Cooperate.

(1) After a petition and any cross petition are filed, the Cabinet may direct the petitioner, cross petitioner, or any other affected party to submit additional information the Cabinet deems relevant to an investigation of the issues raised by the petition or cross petition, as required by KRS 67A.6905(1) and 67C.408(1).

(2) In determining the appropriate collective bargaining unit, as required by KRS 67A.6905(2) and 67C.408(2), the Cabinet may direct the urban-county or consolidated local government employer to furnish a current, alphabetized list of employees and job classifications included or excluded from the appropriate collective bargaining unit claimed in the petition.

(3) All affected parties shall cooperate with the Cabinet and each other in every aspect of the election process. This obligation includes submitting all required and requested information, making a good faith effort to agree on procedural matters, and participating fully in conferences. Failure to cooperate may result in the Cabinet taking appropriate action, including dismissing a petition or denying intervention.

Section 5. Election Determination and Notification.

(1) Within forty-five (45) days of the date a petition for election is filed, the Cabinet shall evaluate the petition and any cross petition to determine whether it meets the requirements of Section 2(1) of this administrative regulation. The Cabinet may extend the time for evaluation up to thirty (30) days if it requests additional information from the petitioner, cross petitioner, or any other affected party, as outlined in Section 4 of this administrative regulation.

(2) If the Cabinet determines that a petition is valid, it shall establish the appropriate collective bargaining unit, including voter eligibility, and notify in writing all affected parties that an election shall be held. If the Cabinet determines that a petition is invalid, the petition shall be dismissed.

(3) If the Cabinet determines that a cross petition for election is valid, it shall notify in writing all affected parties that the cross petitioner shall be allowed to intervene. If the Cabinet determines that a cross petition is invalid, the cross petition shall be dismissed, and the cross petitioner shall not be allowed to intervene.

(4) Parties shall make a good faith effort to enter into agreements on the procedural conduct of the election, including the date, hours, method, and location. If the parties cannot agree, the Cabinet shall determine the details of the election.

(5) Within fifteen (15) days of the date the Cabinet notifies the parties in writing whether the petition and any cross petition are valid, it shall issue a notice of election.

(6) At least ten (10) days prior to the date of the election, the affected urban-county or consolidated local government employer shall either post the notice of election in a conspicuous place available to all affected employees or distribute the notice to all affected employees in a manner by which employment notices are normally distributed.

Section 6. Election Procedures.

(1) The Cabinet shall supervise all elections.

(2) Voting shall be by secret ballot.

(3) The cost of printing and mailing ballots, if any, shall be borne equally by those whose names appear on the ballot.

(4) The petitioner shall appear first on the ballot. Cross petitioners shall appear in rank according to the date and time the Cabinet receives each cross petition. "No representative" or "none" shall be last on the ballot.

(5) If there is no pending cross petition, a petitioner may withdraw its request for an election at any time by filing a notice in writing with the Cabinet. If there is a valid cross petition, an election shall be held; however, either the petitioner or cross petitioner may remove its name from the ballot at any time prior to the date the election is held.

(6) Parties may choose equal numbers of observers to represent them at all polling locations, if elections are held on site, and at the ballot counting, subject to the Cabinet's approval. Observers for the employer shall not be supervisors of any employees in the affected collective bargaining unit.

(a) Each party shall file a written list of its proposed observers with the Cabinet at least ten (10) days prior to an election.

(b) Written objections to observers, stating specific reasons, shall be filed with the Cabinet within five (5) days after service of the list.

(c) The Cabinet's decisions on observers are final and binding.

(7) If the election is conducted on site, the following procedures shall apply:

(a) Polling locations shall be clearly marked. A private area or booth shall be available at each location for voters to mark their ballots in secret.

(b) The parties shall not distribute or post campaign literature within twenty-five (25) feet of the entrance of any polling site during polling hours.

(c) Cameras, video equipment, and similar means of surveillance shall be prohibited within the actual polling area while employees are voting.

(d) The Cabinet representative shall examine the ballot boxes in the presence of the authorized observers immediately prior to opening the polls. When the polls are opened, each ballot box shall be sealed, except for one (1) opening on the top for voters to insert their ballots.

(e) Employees shall present appropriate identification to the Cabinet representative to vote. A voter shall make a cross or check in the circle or block on the ballot corresponding to the voter's choice. If the voter inadvertently spoils a ballot, he or she may return the ballot to the Cabinet representative, who shall give the voter another ballot. The spoiled ballot shall be placed in a spoiled ballot envelope; the Cabinet representative shall seal the envelope; the authorized observers shall initial the envelope; and the Cabinet representative shall deposit the envelope in the ballot box.

(f) A voter shall fold his or her ballot so that no part of its face is exposed and, after leaving the voting area or booth, shall deposit the ballot in the ballot box.

(g) The Cabinet representative may privately assist any voter who, due to physical or other disability, is unable to mark his or her ballot.

(h) The Cabinet representative or any authorized observer may challenge, for good cause, the eligibility of any voter. The observer shall state the reason for the challenge. The Cabinet representative shall challenge any voter whose name does not appear on the eligibility list. A challenged voter shall be permitted to vote in secret. The Cabinet representative shall place the challenged voter's ballot in a challenged ballot envelope, seal the envelope, and mark the voter's name and the reason for the challenge on the outside of the envelope. The authorized observers shall initial the envelope, and the Cabinet representative shall deposit the envelope in the ballot box.

(i) If the Cabinet representative stops the election for any reason, he or she shall completely seal the ballot boxes in the presence of the authorized observers. The ballot boxes shall remain in the custody of the Cabinet representative until voting resumes.

(j) Upon conclusion of the voting, the Cabinet representative shall completely seal the ballot boxes, which shall be initialed by the authorized observers, and bring them to a predetermined location. All ballot boxes shall be opened when they are going to be counted, and the ballots shall be commingled for tallying.

(k) Ballots shall be tallied in accordance with the procedure established in Section 7 of this administrative regulation.

(8) If the election is conducted by mail, the following procedures shall apply:

(a) The Cabinet shall mail a packet containing a ballot; a ballot envelope; a pre-printed employee identification label with signature line; a pre-addressed, stamped, return envelope; and instructions to each eligible voter.

(b) The instructions shall advise the voter to mark the ballot without identifying himself or herself; place the ballot in the ballot envelope; seal the ballot envelope and place it in the return envelope; seal the return envelope; place the preprinted employee identification code label with signature line across the seal; sign the label; and mail the envelope. The instructions shall also advise the voter of the date by which ballots shall be received in order to be counted.

(c) Mail ballots shall remain unopened in their return envelopes until the date set for tallying. On the date set for tallying, the Cabinet representative and the authorized observers may challenge any ballots prior to the opening of the return envelopes. The voter's name, signature, and employee identification code on the label covering the outside envelope seal shall be used to determine if the voter is an eligible employee. Challenged ballots shall be handled in accordance with Section 7 (3) of this administrative regulation.

(d) All ballots that have not been challenged shall be removed from their return envelopes and commingled prior to tallying. The ballots shall be tallied in accordance with Section 7 of this administrative regulation.

Section 7. Tallying Ballots.

(1) After all elections, the Cabinet shall tally ballots in the presence of authorized observers.

(2) Ballots which are defaced, torn, or marked in such a manner that they do not indicate the voter's clear intent shall be void and not counted.

(3) Challenged ballots shall be handled as follows:

(a) The Cabinet representative shall impound the challenged ballots, which shall be considered only if they could be determinative of the outcome of the election.

(b) If challenged ballots could affect the outcome of the election, the Cabinet representative shall examine each challenged ballot, consult the established eligibility criteria, and decide whether the ballot is legitimate and shall be counted.

(4) Representation shall be determined by the majority of the valid ballots cast.

(5) If there are only two (2) choices on the ballot (one (1) labor organization and "no representation"), each of which receives fifty (50) percent of the vote, the Cabinet shall certify that a majority of the eligible employees have not manifested a desire to be represented by the labor organization.

(6) If there are three (3) or more choices on the ballot (two (2) or more labor organizations and "no representation") and no choice receives a majority of the valid ballots cast, the Cabinet shall conduct a runoff election between the two (2) choices that received the most votes, as provided in KRS 67A.6905(3), 67C.408(3), and Section 8 of this administrative regulation.

(7) The Cabinet shall preserve and protect all ballots and election records for at least sixty (60) days from the date results of the election have been certified.

Section 8. Runoff Election.

(1) A runoff election prescribed in KRS 67A.6905(3) or 67C.408(3) shall not be held until the Cabinet or commissioner has ruled on any challenges to ballots and objections to the election.

(2) In order to vote in a runoff election an employee shall have been eligible to vote in the original election and still be in the appropriate collective bargaining unit on the date of the runoff election.

(3) The parties shall follow the procedures in a runoff election established for elections in Section 6 of this administrative regulation.

Section 9. Certification of Election Results. If challenged ballots are insufficient in number to affect the results, no runoff election is to be held, and no timely objections are filed as provided in Section 10 of this administrative regulation, the Cabinet shall promptly certify the results of the election and notify all affected parties in writing.

Section 10. Objections to Election.

(1) Within five (5) days after receiving the vote tally, any party to the election may file objections to the conduct of the election.

(a) Objections shall be in writing and contain a brief statement of facts upon which the objections are based.

(b) An original of the objections, containing the declaration required by Section 2(1)(g) of this administrative regulation, and three (3) copies shall be filed with the commissioner.

(c) The party filing objections shall serve a copy of the objections upon each of the other parties at the same time it files with the commissioner.

(2) Within ten (10) days after the objections are filed, the objecting party shall submit to the commissioner, with copies served upon all parties, a statement of material facts and issues, including a summary of evidence supporting the objections.

(3) Within ten (10) days of the date the statement of material facts and issues is filed with the commissioner, an affected party may file a response.

(4) The commissioner or designated representative shall promptly investigate the allegations, conduct a conference with all affected parties, and issue a report within thirty (30) days of receiving the statement of material facts and issues.

(a) If the commissioner finds reasonable cause to believe that the election was not fairly and freely chosen by a majority of the employees in the appropriate collective bargaining unit, he or she shall order a new election and any other corrective action necessary to insure the fairness of the election process.

(b) If the commissioner determines, upon investigation, that the election was freely and fairly chosen by a majority of the employees in the appropriate collective bargaining unit, he or she shall certify the results of the election.

(c) The commissioner's findings regarding the objections are final and binding.

History

• RELATES TO: KRS 67A.6905, 67C.408
• STATUTORY AUTHORITY: KRS 67A.6905(3), 67C.408(3)
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 67A.6905(3) requires the Education and Labor Cabinet to promulgate administrative regulations governing elections for exclusive representatives of police officers and firefighter personnel, firefighters, or corrections personnel employed by urban-county governments. KRS 67C.408(3) requires the Cabinet to promulgate administrative regulations governing elections for exclusive representatives of police officers employed by consolidated local governments. This administrative regulation establishes procedures for electing and certifying exclusive representatives of police officers employed by urban-county or consolidated local governments and firefighter personnel, firefighters, or corrections personnel employed by urban-county governments.
• History: 32 Ky.R. 439; 629; eff. 11-4-05; 33 Ky.R. 2205; 2950; eff. 4-6-07; Crt eff. 2-26-2020; TAm eff. 3-28-2023.

Chapter 5 Administration

803 KAR 5:005 Employee access to or use of federal tax information; required criminal background check {#sec-803-kar-5-005 omnilex-key=us-ky-regs-official--title-803--803 KAR 5:005}

Section 1. Definitions.

(1) "Applicant" means an individual who applies for employment with the Education and Labor Cabinet or its offices, or a contractor working on behalf of the Cabinet or its offices, who has, or will likely have, access to or use of FTI in their regular course of business.

(2) "Contract staff" means an individual employed by the Education and Labor Cabinet or its offices, or a contractor working on behalf of the Cabinet or its offices, who does not meet the definition of employee in this section.

(3) "Criminal background check" means a national and state fingerprint-supported criminal history background investigation performed in accordance with KRS 151B.021.

(4) "Employee" means either a classified employee as defined by KRS 18A.005(7), an unclassified employee pursuant to KRS 18A.115, or a federally funded time-limited employee as defined by KRS 18A.005(15).

(5) "Disqualifying offense" means a conviction, plea of guilty, Alford plea, or plea of nolo contendere to any felony, misdemeanor, or offense the nature of which indicates that the applicant, employee, or contract staff constitutes an unreasonable and immediate risk to the security of FTI (including crimes of theft or dishonesty), unless the Education and Labor Cabinet or its offices determine there are mitigating circumstances that sufficiently remediate the existing risk.

(6) "Federal tax information" or "FTI" means federal tax returns and return information received directly from the IRS or obtained through an authorized secondary source, such as the Social Security Administration (SSA), Federal Office of Child Support Enforcement (OCSE), Bureau of Fiscal Service (BFS), Centers for Medicare and Medicaid Services (CM) or any entity acting on behalf of the IRS pursuant to an IRC 6103 Agreement.

(7) "Office" means any agency, office, department, or commission within the Education and Labor Cabinet.

(8) "Responsible agency" means an office within the Education and Labor Cabinet, or contractor working on behalf of an office, that employs or offers a job to an individual in a position for which the job duties include access to or use of FTI.

Section 2. Requirements for Criminal Background Checks.

(1) The Education and Labor Cabinet shall require prospective and current employees of the Cabinet or its offices, including contract staff, whose job duties include access to or use of FTI to submit to a fingerprint-based national and state criminal background check as a condition of initial or continued employment. The criminal background check shall occur:

(a) After the applicant is offered a job but before he or she begins working; and

(b) At least once every five (5) years for current employees or contract staff.

(2) The Education and Labor Cabinet, its offices, or responsible agency that requests a fingerprint-based national and state criminal background check for an applicant, current employee, or contract staff shall incur all fees associated with the cost of each criminal background check requested.

(3) For contract staff employed by an entity under contract with the Education and Labor Cabinet or its offices, it shall be sufficient for the purposes of this administrative regulation for the entity under contract to provide a national and state criminal background check for contract staff anticipated to have access to or use of FTI in their work for the Education and Labor Cabinet or its offices. The national and state criminal background check provided by the entity under contract shall have been completed within two (2) years of the start date for contract staff.

(4) The Education and Labor Cabinet, its offices, or responsible agency shall not employ any person in a position for which the job duties include access to or use of FTI if the individual refuses to consent to a fingerprint-based national and state criminal background check.

(5) The Education and Labor Cabinet, its offices, or responsible agency shall notify each applicant, current employee, or contract staff determined to have a disqualifying offense.

Section 3. Disqualification. The Education and Labor Cabinet, its offices, or responsible agency shall not employ or contract with an individual with a disqualifying offense as defined in Section 1(5) of this administrative regulation or whose background check reveals any information that bears upon the fitness of the individual to work in a position with access to or use of FTI. The Education and Labor Cabinet, its offices, or responsible agency shall have the sole discretion to determine if an applicant, current employee, or contract staff is suitable to work in a position with access to or use of FTI and ensure its protection and security in accordance with KRS 151B.021, IRS Publication 1075, and any other relevant policy or procedure concerning the confidentiality of FTI.

Section 4. Individuals Ineligible to be Hired. The Education and Labor Cabinet, its offices, or responsible agency may refuse to hire, contract with, or permit to work any applicant that submits to a criminal background check if one (1) or more of the following conditions apply:

(1) The applicant refuses to provide photo identification and Social Security Number;

(2) The applicant fails to submit their fingerprints at an authorized collection site within five (5) business days of receiving notice to submit fingerprints;

(3) Upon completion of the criminal background check, the Education and Labor Cabinet, its offices, or responsible agency receives notice that the applicant is found to have a disqualifying offense; or

(4) Final and acceptable disposition of a criminal charge related to a disqualifying offense is not provided to the Education and Labor Cabinet, its offices, or responsible agency within sixty (60) days of fingerprint submission.

Section 5. Notice of a Disqualifying Offense – Applicants.

(1) Upon completion of the criminal background check, the Education and Labor Cabinet, its offices, or responsible agency shall notify applicants determined to have a disqualifying offense.

(2) If an applicant wishes to obtain information concerning the disqualifying offense or challenge the accuracy of a criminal background check, the Education and Labor Cabinet, its offices, or responsible agency shall refer the applicant to the appropriate state or federal law enforcement agency.

Section 6. Notice of Disqualifying Offense, Reconsideration, and Appeal – Current Employees.

(1) Upon completion of a criminal background check, the Education and Labor Cabinet, its offices, or responsible agency shall notify current employees determined to have a disqualifying offense. A current employee found to have a disqualifying offense shall immediately be removed from duties with access to or use of FTI.

(2) Upon receipt of notice of a disqualifying offense, a current employee removed from responsibilities requiring FTI access or use may submit a written request for reconsideration to the Education and Labor Cabinet's Division of Human Resources no later than fourteen (14) calendar days from the date the notice is issued.

(3) The current employee's request for reconsideration shall include the following information:

(a) A written explanation of each disqualifying offense, including:

1. A description of the events related to the disqualifying offense;

2. The number of years since the occurrence of the disqualifying offense;

3. The age of the offender at the time of the disqualifying offense;

4. Evidence that the individual has pursued or achieved rehabilitation with regard to the disqualifying offense; and

5. Any other relevant and mitigating circumstances regarding the disqualifying offense;

(b) Official documentation showing that all fines, including court-imposed fines, costs or restitution, have been paid, or documentation demonstrating adherence to a payment schedule, if applicable;

(c) The date probation or parole was satisfactorily completed, if applicable; and

(d) Employment and character references, including any other evidence demonstrating the ability of the individual to competently perform the employment responsibilities.

(4) A current employee who requests reconsideration may be retained on staff during the review process subject to the following factors:

(a) The nature and severity of the disqualifying offense;

(b) The disposition of the disqualifying offense;

(c) The time elapsed since the disqualifying offense;

(d) The employee's personnel history; and

(e) Whether the employee may be assigned other duties that do not require access to or use of FTI.

(5) After review, the Education and Labor Cabinet, its offices, or responsible agency may:

(a) Transfer the employee to another open position at the same pay grade or lower within the Education and Labor Cabinet, its offices, or responsible agency for which the employee is qualified and for which access to or use of FTI is not part of the job responsibilities;

(b) Dismiss the employee if it is determined that the nature of the disqualifying offense presents an immediate, serious and irreparable risk to FTI if the employee's job duties require access to or use of FTI;

(c) Redefine the employee's job responsibilities to exclude those functions that require access to or use of FTI; or

(d) Any other action permitted by law.

(6) The appointing authority as defined in KRS 18A.005(1), or his or her designee, shall issue a final written determination regarding the reconsideration request. The appointing authority or his or her designee shall notify the employee of the final determination no later than thirty (30) calendar days from receipt of the written request for reconsideration, and the notice shall include any personnel action to be taken by the Education and Labor Cabinet, its offices, or responsible agency as a result of the final determination.

(7) The current employee may have the right to appeal an action taken by the Education and Labor Cabinet, its offices, or responsible agency pursuant to the applicable sections of KRS Chapter 18A and the Kentucky Administrative Regulations.

Section 7. Notice of Disqualifying Offense – Contract Staff.

(1) Upon completion of the criminal background check, any contract staff found to have a disqualifying offense shall immediately be subject to one (1) or more of the following actions at the sole discretion of the Education and Labor Cabinet, its offices, or responsible agency:

(a) Termination;

(b) If permitted by the contract, removed from all duties requiring access to or use of FTI and assigned other duties that do not require access to or use of FTI; or

(c) Any other action permitted by law.

(2) The Education and Labor Cabinet, its offices, or responsible agency shall notify the contract staff of the action or actions taken within seven (7) days of discovery of the disqualifying offense.

(3) If the contract staff wishes to obtain information concerning the disqualifying offense or challenge the accuracy of a criminal background check, the Education and Labor Cabinet, its offices, or responsible agency shall refer the applicant to the appropriate state or federal law enforcement agency.

Section 8. Challenges to Criminal Background Check Information. An individual subject to a criminal background check required by KRS 151B.021 and this administrative regulation shall have the right to request and review the results of his or her national and state criminal background check and to request correction of any inaccurate information. All corrections shall be addressed with the Federal Bureau of Investigation or the Department of Kentucky State Police; the Education and Labor Cabinet cannot assist with this process or correct any inaccurate information.

Section 9. Pardons, Diversions, and Expungements. An applicant, employee, or contract staff who has received a pardon for a disqualifying offense, has had a disqualifying offense dismissed after successful completion of a diversion program, or has had the disqualifying offense expunged shall not be barred from employment with the Education and Labor Cabinet, its offices, or responsible agency in a position with job duties that include access to or use of FTI for reasons related to the underlying disqualifying offense(s).

History

• RELATES TO: KRS 18A.095, 151B.015, 151B.019, 151B.021
• STATUTORY AUTHORITY: KRS 151B.021
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 151B.019 requires the Education and Labor Cabinet to exercise all administrative functions of the state concerned with the employer-employee relationship. KRS 151B.021 requires the Education and Labor Cabinet to promulgate administrative regulations to establish requirements concerning criminal background checks for prospective and current employees, including contract staff, with access to or use of federal tax information (FTI). This administrative regulation establishes the guidelines to implement the requirements set forth in KRS 151B.021 and IRS Publication 1075.
• History: 803 KAR 005:005. 48 Ky.R. 2660; 49 Ky.R. 56; eff. 10-4-2022; TAm eff. 3-4-2026.

Chapter 30 Workers' Compensation Funding Commission

803 KAR 30:010 Special fund assessments {#sec-803-kar-30-010 omnilex-key=us-ky-regs-official--title-803--803 KAR 30:010}

Section 1. Definitions.

(1) "Actual physical receipt by the KWCFC" means:

(a) Physical delivery to the Funding Commission office prior to January 1, 2020; or

(b) Electronic filing of the Quarterly Premiums Report, accompanied by:

1. Electronic fund transfer of an assessment due to the KWCFC account; or

2. Prior to January 1, 2020, physical delivery of payment to the office of the Funding Commission.

(2) "Assessment Payer" is defined by KRS 342.1231(10).

(3) "Board" means, unless otherwise specified, the Board of Directors of the Kentucky Workers' Compensation Funding Commission.

(4) "Consideration" means premium, premium charges or premium modifications set forth on the face of a workers' compensation insurance policy, all of which are subject to the Special Fund assessment calculation.

(5) "Engaged in severance or processing of coal" is defined by KRS 342.0011(23)(b).

(6) "Insurance carrier" is defined by KRS 342.0011(22).

(7) "Insurance company" means a company authorized to do business in the Commonwealth writing workers' compensation insurance coverage and includes the Employers Mutual Insurance Authority.

(8) "Insurance policy", for an insurance company or group self-insurer, is defined by KRS 342.0011(26).

(9) "KWCFC" or "Funding Commission" means the Kentucky Workers' Compensation Funding Commission.

(10) "Premium", for each employer carrying one's own risk pursuant to KRS 342.340(1), is defined by KRS 342.0011(28).

(11) "Premium", for every group of self-insurers, is defined by KRS 342.0011(24).

(12) "Premium", for insurance companies, is defined by KRS 342.0011(25)(c).

(13) "Premiums received":

(a) For group self-insurers, including group self-insurers electing to report premiums and have special fund assessments computed in the same manner as insurance companies, means all assessments levied on its members by a group or contributed to it by the members, including premiums charged off or deferred; and

(b) For insurance companies, is defined by KRS 342.0011(25)(a).

(14) "Return premiums", for insurance companies, is defined by KRS 342.0011(25)(d).

(15) "Self-insurance year", for a group self-insurer, is defined by KRS 342.0011(27).

(16) "Severance or processing of coal" is defined by KRS 342.0011(23)(a).

(17) "SIC code" is defined by KRS 342.0011(29) and is now known as the NAICS code.

(18) "Special fund assessment" means the assessment established in KRS 342.122.

Section 2. Special Fund Assessment.

(1) Special fund assessment shall be imposed upon all premiums, including any premiums for coverage under the Black Lung Compensation Insurance Fund, 30 U.S.C. 901-945, for an insurance policy providing Kentucky workers' compensation coverage, except special fund assessments shall not be imposed upon premiums for the following:

(a) Excess, reinsurance, or coverage under the Black Lung Compensation Insurance Fund, 30 U.S.C. 901-945, for group or individual self-insurers;

(b) Contracts between insurance carriers and reinsurers;

(c) Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901-950 coverage defined as USL&H Manual Premium +/- the premium applicable of all rates, factors, and fixed expenses; and

(d) Coverage solely for persons for whom a rule of liability for injury or death is provided by the laws of the United States.

(2) For an insurance policy with provisions for deductibles effective on or after January 1, 1995, the premium upon which a special fund assessment is imposed for insurance companies shall not include schedule rating modifications, debits, or credits.

(3) Insurance companies shall report and pay assessments every calendar quarter on premiums received for the quarter reported at the rate in effect on the effective date of the policy.

(4)

(a) Insurance companies shall remit special fund assessments or take credit for returned special fund assessments on premiums received or return premiums at the rate in effect on the effective date of the policy, regardless of the date the premium is actually received or returned.

(b) Additional premiums received for policies with effective dates prior to November 1, 1987 shall be assessed at the rates of 23.30 percent for all employers and 40.00 percent additional for employers engaged in severance or processing of coal.

(5)

(a) Group self-insurers shall report and pay special fund assessments every calendar quarter on premiums received or return premiums at the rate in effect on the effective date of the group self-insurance year for which the premium was received or returned, regardless of the date the premium is actually levied, received, or returned.

(b) A premium shall include any member assessments or contributions used to purchase excess insurance, reinsurance, or Black Lung coverage.

(6) Special fund assessment shall be imposed upon additional premiums received by group self-insurers for self-insurance years effective prior to October 26, 1987 at the rates of 23.30 percent for all employers and 40.00 percent additional for employers engaged in severance or processing of coal.

(7) Group self-insurers shall take credit for the return of special fund assessments at the rate in effect on the effective date of the group self-insurance year for which premiums are returned.

(8) Group self-insurers may elect to report their premiums and have their special fund assessments computed in the same manner as insurance companies, in accordance with KRS 342.122(4).

(a) Election by an existing group self-insurer to report in the same manner as an insurance company shall be made in writing to the Kentucky Workers' Compensation Funding Commission.

(b) Election by newly formed group self-insurers to report in the same manner as an insurance company shall be made in writing to the Kentucky Workers' Compensation Funding Commission within sixty (60) days following the effective date of the group's initial self-insurance year.

(c) Failure of a group self-insurer to elect in writing to report in the same manner as an insurance company in accordance with paragraphs (a) and (b) of this subsection shall constitute an election to report and pay special fund assessments as a group self-insurer in accordance with subsections (5), (6), and (7) of this section.

(d) The election made in accordance with paragraph (a), (b), or (c) of this subsection may not be rescinded for at least ten (10) years, in accordance with the provisions of KRS 342.122(4).

(e) Group self-insurers electing to report premiums and have special fund assessments computed in the same manner as insurance companies shall report and pay assessments every calendar quarter on premiums received for the quarter reported at the rate in effect on the annual effective date of the individual member's policy year.

(f)

1. Group self-insurers electing to report premiums and have special fund assessments computed in the same manner as insurance companies shall remit special fund assessments or take credit for returned special fund assessments on premiums received or return premiums at the rate in effect on the effective date of the individual member's policy year, regardless of the date the premium is actually received or returned.

2. Additional premiums received for policy years with effective dates prior to November 1, 1987 shall be assessed at the rates of 23.30 percent for all employers and 40.00 percent additional for employers engaged in severance or processing of coal.

(9)

(a) Employers self-insuring Kentucky workers' compensation liability under the provisions of KRS 342.340 shall pay special fund assessments on the premium calculated by the Commissioner of the Department of Workers' Claims in accordance with KRS 342.0011(28).

(b) One-fourth (1/4) of the total annual calculated premium shall be reported and the special fund assessments shall be paid to the KWCFC each calendar quarter.

(10) The premium calculated by the Commissioner of the Department of Workers' Claims for individual self-insurers shall be assessed at the rates in effect on January 1 of the calendar year for which the premium is calculated.

(11)

(a) Special fund assessments shall be paid quarterly, in accordance with KRS 342.122(2).

(b) Prior to January 1, 2020, if the assessment due date falls on a weekend (Saturday or Sunday), assessments due and payable, if not postmarked in accordance with KRS 342.122(2), shall be sent to the KWCFC in advance so as to be received by the KWCFC no later than close of business, on the first business day immediately following the weekend due date. After January 1, 2020, the assessment shall be due and payable electronically in accordance with KRS 342.122 (2)(b).

(12)

(a) If an insurance carrier collects from an insured a special fund assessment at a rate in excess of that established by KRS 342.122 and this administrative regulation, or collects for any reason from an insured an amount in excess of that established by KRS 342.122 and this administrative regulation, the insurance carrier shall refund the excess to the insured in accordance with KRS 342.1231(9) and (10).

(b) If, after good faith efforts, the excess cannot be returned to the insured in accordance with KRS 342.1231(9) and (10), the excess shall be remitted to the KWCFC.

(c) An insurance carrier shall not retain special fund assessments in excess of those established by KRS 342.122 and this administrative regulation.

(13) The assessment payer shall be notified if proof of refund to insured has not been timely provided or escheated to the KWCFC per KRS 342.1231.

(14) When proof of refund to insured is received late or refund to insured is not escheated to the KWCFC timely:

(a) Penalty and interest shall be calculated; and

(b) The assessment payer shall be notified of the additional amount due.

Section 3. Special Fund Assessment Base.

(1) The Special Fund assessment shall be calculated in accordance with KRS 342.0011(25)(a) - (e).

(2) All consideration shall be included in the Special Fund assessment base as outlined on the face of the insurance policy or other evidence of coverage.

(3) The assessment may be collected by the insurance carrier from the insured. The carrier is responsible for proper assessment calculation and remittance.

(4) Each statement from an insurance carrier presented to an insured reflecting all premium elements and assessment amounts shall clearly identify and distinguish the amount to be paid for premium and the amount to be paid for assessments.

Section 4. Deductible Program Adjustment.

(1) The Special Fund assessment calculation shall be conducted in accordance with the deductible program adjustment established by KRS 32.0011(25)(e).

(2) All consideration of the calculated cost of coverage shall be included in the Special Fund assessment base, on a gross basis.

(3) All consideration includes the following elements:

(a) Expense Constant;

(b) Terrorism;

(c) Catastrophe (other than Certified Acts of Terrorism);

(d) Audit Non-compliance Charge; and

(e) All other premium elements or other company-specific modifications as identified on the face of the policy

(4) The Special Fund assessment shall be determined independent of the regulations of any other agency or agencies, unless otherwise indicated.

(5) A visual guide on the calculation for assessment purposes is included in the Assessment Calculation Guide, or Form KWCFC-08. This form is not exhaustive but is intended to provide calculation guidance.

(a) This guidance mirrors the Kentucky Workers Compensation Premium Algorithm framework for premium charges and credits.

(b) Standard Premium is the premium before premium discount is applied, as identified by the National Council on Compensation Insurance, Inc. (NCCI) Basic Manual for Kentucky, effective date November 1, 2021.

(c) Premium Discount is any discount clearly identified on the face of the policy to reduce the premium. The premium discount may also be used to reduce the Special Fund assessment but shall not be modified for assessment calculation purposes.

Section 5. Penalty and Interest; Late filing of Quarterly Premium Reports.

(1) The KWCFC Board may waive part or all of the penalty, but not the interest, in accordance with KRS 342.1221.

(a) A designee of the KWCFC Board may waive part or all of the penalty, if under $5,000, in the absence of the KWCFC Board of Directors.

(b) Reasonable cause guidelines for the designee's consideration of waiver of audit penalty may include:

1. Whether the audit is the first such audit for the payer and covered an extended period of time;

2. Whether the penalty is reasonable in comparison to assessment owed;

3. Whether the payer provided timely and accurate information when requested;

4. Whether the payer impeded the audit process or delayed access to records that resulted in an unnecessary delay for completion of the audit;

5. Whether there have been prior waivers within the previous five (5) year period;

6. Whether payer's grounds for waiver are identical or similar to prior waiver requests;

7. Whether payer knowingly engaged in erroneous reporting;

8. Whether the payer should have known its reporting was in error; or

9. Whether there is any other unique issue or circumstance that reasonably warrants a waiver.

(c) Reasonable cause for designee's waiver of penalties on late filing of Quarterly Premium Reports may include:

1. Whether payer incurred an extraordinary event;

2. Whether KWCFC incurred an extraordinary event;

3. Whether good faith efforts were made to file in a timely fashion;

4. Whether there is a history of timely filing;

5. Whether the penalty is reasonable in comparison to assessment owed;

6. Whether there have been prior waivers within the previous five (5) year period; or

7. Whether there are any other reasonable causes to justify waiver.

(d) If an assessment payer is not satisfied with the decision made by the designee, an appeal may be submitted within thirty (30) days from the date of mailing of the decision to the Board of Directors of the KWCFC for final ruling.

(e) If an assessment payer is not satisfied with the decision made by the KWCFC Board of Directors, an appeal may be submitted to the Office of Claims and Appeals/Board of Tax Appeals within thirty (30) days from the date of mailing of the final ruling.

(2) The assessment payer shall receive notification of past due additional assessment, penalty and interest, and expenses. When payment is received by the KWCFC:

(a) Penalty and interest shall be calculated; and

(b) Notification shall be sent to the assessment payer of the additional amount due.

(3) At the time of the audit, the Funding Commission shall include a review of any penalties and interest submitted by the payer and refund amounts paid if there was an overpayment of assessment during any quarter of the audit review period.

Section 6. Refunds.

(1) Insurance carriers may take credit for the return of special fund assessments on their quarterly premiums reports, if:

(a) The credit is taken by the insurance carrier within four (4) years of the date the insurance carrier returns the assessment to the employer; and

(b) The assessment is returned to the employer in addition to the returned premium.

(2)

(a) Assessment payers may submit a claim in writing for a refund of special fund assessments not taken as a credit on the quarterly premiums report.

(b) The assessment payer shall submit with the claim all documents required to support the claim.

(3) All refunds, including those made in accordance with subsection (2) of this section, shall be subject to audit by the Funding Commission.

Section 7. Audits; General reimbursement of expenses.

(1) In accordance with KRS 342.1223(2)(g), the Kentucky Workers' Compensation Funding Commission shall conduct audits independently or in cooperation with the Labor Cabinet or the Department of Revenue of all entities subject to the special fund assessments established by KRS 342.122.

(2) Until the initial audit has been completed, all records supporting reported premiums and special fund assessments, including refunds and credits, shall be maintained by the assessment payer per KRS 342.1231(8).

(3) All necessary and reasonable expenses incurred by the KWCFC in conducting an audit shall be reimbursed to the KWCFC by the assessment payer audited.

(4) Expenses to be reimbursed shall include:

(a) Travel Expenses:

1. Meals;

2. Lodging;

3. Transportation;

4. Parking; and

5. Incidentals; and

(b) Labor expenses:

1. Preparation for the audit;

2. Travel;

3. Finalizing of the audit; and

4. Preparation of written reports and correspondence.

(5) KWCFC employees shall be reimbursed for all out-of-pocket expenses they incurred while conducting audits.

(6) Except for air transportation, meals, and mileage, expenses shall be reimbursed at actual cost to employees.

(7) Air fare shall be reimbursed at a rate not to exceed the cost of coach class.

(8) Meals shall be reimbursed at actual cost not to exceed fifty-five (55) dollars per day.

(9) Mileage for the use of privately owned auto shall be reimbursed at the rate established in 200 KAR 2:006, Section 7(4)(a).

(10) KWCFC employees conducting KWCFC official business unrelated to audits shall follow the same reimbursement guidelines as set forth in this section.

Section 8. Audits; Insurance Companies.

(1) Upon request, insurance companies shall provide the Funding Commission with data files containing complete policy level detail information for every policy containing workers' compensation coverage in Kentucky with transactions during the audit period, on Form KWCFC-05, Annual Audit and Collections Report, Data Reporting Instructions Insurance Companies.

(2) Insurance companies shall make available to the Funding Commission's auditors the following items:

(a) Copies of quarterly premiums reports for audit period with backup documentation;

(b) All documentation required to reconcile the sum of each four (4) calendar quarters to the respective Page 14 totals on the Annual Reports to the Kentucky Department of Insurance, incorporated by reference in 806 KAR 52:010;

(c) A complete listing of:

1. Current filings with the Kentucky Department of Insurance;

2. Kentucky policies containing written premium written off as a bad debt;

3. Policies written by an association for which the insurance company is providing Kentucky workers' compensation coverage;

4. Sample policies requested by the Funding Commission;

5. Deductible policies written nationwide. This list shall contain at a minimum the policy number, insured's name, and policy effective date;

6. Deductible policies written with Kentucky coverage whose policy effective date is equal to or later than 5/6/93 but not later than 12/31/93. This list shall contain either Kentucky calculated premium, deductible credit, and net deductible premium, or a list of Kentucky claims reimbursed under the deductible plan along with the associated administrative costs; and

7. Deductible policies written with Kentucky coverage with policy effective dates on or after 1/1/94. This list shall contain Kentucky's standard premium, deductible credit, net deductible premium, any schedule rating credit, as well as all other identifying information allowing a quarterly recalculation and reconciliation; and

(d) All other information necessary to support reported premiums and special fund assessments.

(3) For insurance policies effective prior to October 26, 1987, the Funding Commission shall be furnished with:

(a) A schedule identifying the assessment rates applied to these policies;

(b) The dates upon which these rates were first entered into the policy or premium management system;

(c) The dates upon which these rates became active in the policy or premium management system; and

(d) A copy of the Kentucky Workers' Compensation Tax and Assessment Excess Collections information.

(4) The Funding Commission shall utilize one (1) or more of the following procedures in the completion of audits:

(a) Detailed examination of records by policy;

(b) Use of audit sampling techniques;

(c) Verification and reconciliation to NAIC reports; and

(d) Other procedures necessary because of the unique nature of the entity being audited.

(5) Upon the completion of an audit the Funding Commission shall not reaudit a period unless:

(a) The Funding Commission receives information giving rise to an adjustment of the written premium previously reported to NAIC upon which the Funding Commission had relied; or

(b) The Funding Commission receives information indicating the presence of fraud or other similar circumstance.

Section 9. Audits; Group Self-insurers.

(1) Upon request, group self-insurers shall provide the Funding Commission with data files containing complete policy or member level detail information for all transactions during the audit period on Form KWCFC-06, Annual Audit and Collections Report, Data Reporting Instructions Group Self Insurer.

(2) Group self-insurers shall make available to the Funding Commission's auditors the following items:

(a) Copies of quarterly premiums reports for each audit period with backup documentation;

(b) All documentation required to reconcile the sum of each four (4) calendar quarters to reports filed with the Department of Workers' Claims;

(c) A listing of members to whom coverage was extended for which premium has been written off as a bad debt, along with an explanation of how these bad debts were handled in the reports to the Department of Workers' Claims;

(d) A complete list of sample policies or agreements requested by the Funding Commission; and

(e) All other documents necessary to support reported premiums and assessments.

(3) For insurance years effective prior to October 26, 1987, the Funding Commission shall be furnished:

(a) A schedule identifying the assessment rates applied to these self-insurance years;

(b) The dates upon which these rates were first entered into the policy or premium management system; and

(c) The dates upon which these rates became active in the policy or premium management system.

(4) The Funding Commission shall utilize one (1) or more of the following procedures in the completion of audits:

(a) Detailed examination of records by policy or members' account;

(b) Detailed examination of members' agreements;

(c) Use of audit sampling techniques;

(d) Verification and reconciliation to Department of Workers' Claims' reports; and

(e) Other procedures necessary because of the unique nature of the entity being audited.

(5) Upon the completion of an audit the Funding Commission shall not reaudit a period unless:

(a) The Funding Commission receives information giving rise to an adjustment of the written premium previously reported to the Department of Workers' Claims upon which the Funding Commission had relied; or

(b) The Funding Commission receives information indicating the presence of fraud or other similar circumstance.

Section 10. Audits; Individual Self-insurers.

(1) Upon request, self-insurers shall provide the Funding Commission with the following:

(a) Loss experience reports;

(b) Payroll records;

(c) All back up documentation request for each audit period; and

(d) Other information necessary because of the unique nature of the entity being audited.

(2) The Funding Commission shall utilize one (1) or more of the following procedures in completion of audits:

(a) Detailed examination of all required records;

(b) Use of audit sampling techniques; and

(c) Other procedures necessary because of the unique nature of the entity being audited.

(3) Upon completion of an audit the Funding Commission shall not re-audit a period unless:

(a) The Funding Commission receives information giving rise to an adjustment of the information previously reported to the Department of Workers' Claims upon which the Funding Commission had relied; or

(b) The Funding Commission receives information indicating the presence of fraud or other similar circumstance.

Section 11. Audits; Invoice, Protest and Resolution.

(1) The Funding Commission shall send to the assessment payer a notice of any assessment assessed by the Funding Commission.

(2) A summarized invoice consisting of totals for labor, travel and all other expenses shall be submitted to the assessment payer as soon as practicable after completion of the audit. An itemized invoice shall be available upon request.

(3)

(a) The assessment shall be final if not protested in writing to the Funding Commission within thirty (30) days from the date of notice.

(b) The protest shall be accompanied by a supporting statement setting forth the grounds upon which the protest is made.

(c)

1. Upon written request, the Funding Commission shall extend the time for filing the supporting statement if it is determined that the delay is necessary and unavoidable.

2. The refusal of an extension may be reviewed in the same manner as a protested assessment.

(4) After a timely protest has been filed, the assessment payer may request a conference with the Funding Commission staff.

(a) The request shall be granted in writing stating the date and time set for the conference.

(b) The assessment payer may appear in person or by representative.

(c) Further conferences may be held by mutual agreement.

(5) For those issues not resolved during the conferences described in subsection (4) of this section, the assessment payer may request a conference with the Funding Commission's Board of Directors.

(a) The request shall be granted in writing stating the date and time set for the conference.

(b) The assessment payer may appear in person or by representative.

(6) After considering the assessment payer's protest, including any matters presented at the final conference, the Funding Commission shall issue a final ruling on any matter still in controversy, which shall be mailed to the assessment payer. The ruling shall state:

(a) That it is the final ruling of the Funding Commission and shall generally state the issues in controversy;

(b) The Funding Commission's position; and

(c) The procedure for appeal to the Kentucky Claims Commission in accordance with KRS 49.220 and 802 KAR 1:010.

(7)

(a) The assessment payer may request in writing a final ruling any time after filing a timely protest and supporting statement.

(b) If a final ruling is requested, the Funding Commission shall issue the ruling within sixty (60) days or at the next Board of Directors meeting whichever is later, from the date the request is received by the Funding Commission.

(8) After a final ruling has been issued, the assessment payer may appeal to the Kentucky Claims Commission pursuant to the provisions of KRS 49.220.

Section 12. Reports.

(1) Insurance companies, group self-insurers, and individual self-insurers shall file an electronic Quarterly Premiums Report accompanied by the assessment due and payable for each calendar quarter.

(a) The quarterly premiums report and assessment due and payable shall be received by the KWCFC no later than thirty (30) days following the end of the calendar quarter.

(b) Receipt of the Quarterly Premiums Report and assessment due and payable shall be considered timely through electronic filing and payment; and prior to January 1, 2020 actual physical receipt by the KWCFC or by postmark of the U.S. Postal Service.

(2) Insurance companies shall file Form KWCFC-01, Quarterly Premiums Report.

(3) Employers carrying their own risk shall file Form KWCFC-02, Quarterly Premiums Report.

(4) Group self-insurers shall file Form KWCFC-03, Quarterly Premiums Report.

(5)

(a) Every insurance company, group self-insurer, and individual self-insurer providing workers' compensation insurance in Kentucky shall submit to the KWCFC an Annual Audit and Collections Report for each calendar year no later than June 30th following the end of the calendar year.

(b) These reports shall be submitted to the KWCFC electronically and shall contain the information in the file content format in accordance with the Annual Audit and Collections Report instructions incorporated by reference in Form KWCFC-05, Annual Audit and Collections Report, Data Reporting Instructions Insurance Companies; Form KWCFC-06, Annual Audit and Collections Report, Data Reporting Instructions Group Self Insurer; or Form KWCFC-07, Annual Audit and Collections Report, Individual Self Insurer, as applicable.

(6) An insurance company or group self-insurer that does not write, receive, or return any Kentucky workers' compensation insurance premium during the calendar year shall complete and return Form KWCFC-04 (Non-writer Statement) to the Kentucky Workers' Compensation Funding Commission, electronically or by mail, 42 Mill Creek Park, Frankfort, Kentucky 40601 no later than June 30th following the end of the calendar year.

Section 13. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "KWCFC-01, Quarterly Premiums Report", 02/2023;

(b) "KWCFC-02, Quarterly Premiums Report", 02/2023;

(c) "KWCFC-03, Quarterly Premiums Report", 02/2023;

(d) "KWCFC-04, Nonwriter Statement", 02/2023;

(e) "KWCFC-05, Annual Audit and Collections Report, Data Reporting Instructions Insurance Companies", 02/2023;

(f) "KWCFC-06, Annual Audit and Collections Report, Data Reporting Instructions Group Self Insurer", 02/2023;

(g) "KWCFC-07, Annual Audit and Collections Report, Individual Self-Insurer", 02/2023; and

(h) "KWCFC-08, Assessment Calculation Guide", 02/2023.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Workers' Compensation Funding Commission, 42 Mill Creek Park, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. This material is also available at the Kentucky Workers' Compensation Funding Commission Web site http://www.kwcfc.ky.gov.

History

• RELATES TO: KRS 49.220, 342.0011, 342.122, 342.1221, 342.1222, 342.1223, 342.1231, 342.340, 342.650, 30 U.S.C. 901-945, 33 U.S.C. 901-950
• STATUTORY AUTHORITY: KRS 342.1223(3)(f)
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 342.1223(3)(f) authorizes the Kentucky Workers' Compensation Funding Commission (KWCFC) to promulgate administrative regulations. KRS 342.1223(2)(g) requires the KWCFC to conduct periodic audits of all entities subject to the special fund assessments imposed by KRS 342.122. This administrative regulation establishes the proper calculation of assessment, establishes the procedures and forms to be used to report and remit special fund assessments, identifies audit expenses, establishes procedures for collection of assessments and expenses, and defines penalty and interest procedures.
• History: 22 Ky.R. 826; 1308; eff. 12-19-1995; TAm eff. 8-9-2007; 36 Ky.R. 2238; 37 Ky.R. 61; eff. 8-6-2010; 45 Ky.R. 774, 1691, 2093; eff. 2-1-2019; 49 Ky.R.1836, 2285; eff. 9-5-2023.

Chapter 50 Kentucky Occupational Safety and Health Review Commission

803 KAR 50:010 Hearings; procedure, disposition {#sec-803-kar-50-010 omnilex-key=us-ky-regs-official--title-803--803 KAR 50:010}

Section 1. Definitions.

(1) "Act" means the Occupational Safety and Health Act of 1972, KRS Chapter 338.

(2) "Affected employee" or "employee" means an employee of a cited employer who is exposed to the alleged hazard described in the citation, as a result of the employee's assigned duties.

(3) "Authorized employee representative" means a labor organization which has a collective bargaining relationship with a cited employer and which represents affected employees.

(4) "Citation" means a written communication issued by the commissioner to an employer pursuant to KRS 338.141.

(5) "Commission" means the Kentucky Occupational Safety and Health Review Commission.

(6) "Commissioner" means the commissioner of the Department of Workplace Standards, Education and Labor Cabinet.

(7) "Day" means a calendar day.

(8) "Executive director" means the executive director of the commission.

(9) "Hearing officer" means a hearing officer appointed by the commission pursuant to KRS 338.071(5) and 338.081.

(10) "Natural person" means an employer whose business is organized as a proprietorship or an affected employee who is not represented by a labor organization.

(11) "Proceeding" means any proceeding before the commission or before a hearing officer.

(12) "Representative" means an attorney authorized by a party or intervenor to represent him in a proceeding.

(13) "Working day" means all days except Saturdays, Sundays, or federal or state holidays.

Section 2. Meetings.

(1) Regular meetings of the commission shall be held in its offices, Frankfort, Kentucky, on the first Tuesday of each month at 10:00 a.m., unless changed to another date, place, or time by commission action.

(2) Special meetings shall be held at the times and places as the call directs.

(3) The commission shall be considered as in continuous session for the performance of administrative duties.

Section 3. Assignment of Hearing; Filings.

(1) Pursuant to KRS 338.081, cases coming before the commission may be assigned to a hearing officer within the discretion of the commission for a hearing and a finding of facts, conclusions of law, and recommended order. Cases may be withdrawn by agreement, dismissed for cause, or otherwise disposed of before hearing in the discretion and judgment of the commission. Further, the commission may, upon its own motion or on motion of a party, if granted, hold hearings as provided under KRS 338.071, in which case provisions of this administrative regulation relating to hearing officers and hearings shall apply if applicable.

(2) A recommended order or adjudication by the hearing officer or the initial order of the review commission, if dismissed or disposed of as provided in subsection (1) of this section or if the commission sits for a hearing, shall become the final order of the commission under the provisions of KRS 338.091, appealable to the Franklin Circuit Court forty (40) days from date of issue, unless called for further review pursuant to Section 48 of this administrative regulation. If reviewed by the commission, an order of the commission determinative of issues before it shall become a final order as defined in KRS 338.091(1) upon date of issue.

(3) Prior to the assignment of a case to a hearing officer, all papers shall be filed with the executive director at the commission offices, #4 Millcreek Park, Frankfort, Kentucky 40601. Subsequent to the assignment of the case to a hearing officer, and before the hearing officer issues a decision, all papers shall be filed with the hearing officer at the address given in the notice informing of the assignment. Subsequent to a decision of the hearing officer, all papers shall be filed with the executive director.

(4) Unless otherwise ordered, all filing may be accomplished by first-class mail.

(5) Filing is effective when mailed.

Section 4. Scope of Rules; Applicability of Kentucky Rules of Civil Procedure.

(1) The rules established by this administrative regulation shall govern all proceedings before the commission and its hearing officers.

(2) In the absence of a specific provision, procedure shall be in accordance with the Kentucky Rules of Civil Procedure.

Section 5. Words Denoting Number or Gender.

(1) Words importing the singular number may extend and be applied to the plural and vice versa.

(2) Words importing masculine gender may be applied to feminine and vice versa.

Section 6. Computation of Time.

(1) In computing a period of time prescribed or allowed in these rules, the day from which the designated period begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or federal or state holiday, in which event the period runs until the end of the next day not a Saturday, Sunday, or federal or state holiday. If the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, and federal or state holidays shall be excluded in the computation.

(2) If service of a pleading or document is by mail pursuant to Section 3 of this administrative regulation, three (3) days shall be added to the time allowed by these rules for the filing of a responsive pleading.

Section 7. Extensions of Time. Requests for extensions of time for the filing of a pleading or document shall be received in advance of the date on which the pleading or document is due to be filed.

Section 8. Record Address. The initial pleading filed by a person shall contain the person's name, address, and telephone number. A change in this information shall be communicated promptly to the hearing officer or the commission, as the case may be, and to all other parties and intervenors. A party or intervenor who fails to furnish the information shall have waived the right to notice and service under these rules.

Section 9. Service and Notice.

(1)

(a) Except as provided in paragraph (b) of this subsection, a copy of all pleadings or other documents shall be served by the filing party or intervenor on every other party or intervenor at the time of filing in accordance with this section. Every paper relating to discovery required to be served on a party shall also be served on all parties and intervenors in accordance with this section.

(b) The original complaint, or an amended complaint if filed prior to service of the original complaint, shall be served in accordance with Section 20(3) of this administrative regulation.

(2) Service upon a party or intervenor who has appeared through an attorney shall be made only upon the attorney.

(3) Unless otherwise ordered, service may be accomplished by postage pre-paid first class mail at the last known address, by electronic transmission, or by personal delivery. Service is effective when mailed (if by mail), at the time of receipt (if by electronic transmission), or when personally delivered (if by personal delivery). Documents sent by overnight delivery service shall be deemed personal delivery. Service of documents by electronic transmission shall only be permitted if all parties consent to that method of service in writing. The certificate of service of the electronic transmission shall state that the required consent has been given and the method of transmission.

(4) Proof of service shall be accomplished by a written statement of service which states the date and manner of service. The statement shall be filed with the pleading or document.

(5) If service is accomplished by posting, proof of posting shall be filed not later than the first working day following the posting.

(6) Service and notice to employees represented by an authorized employee representative shall be accomplished by serving the authorized employee representative in the manner prescribed in subsection (3) of this section. If the authorized employee representative has appeared in a proceeding on behalf of the employees it represents, service shall be made upon the attorney for the authorized employee representative.

(7) If there are affected employees who are not represented by an authorized employee representative, the employer shall immediately upon receipt of notice of contest or request for extension or modification of the abatement period post, where the citation is required to be posted by 803 KAR 2:125, Section 1(1), a copy of the notice of contest and a notice informing the affected employees of their right to party status and of the availability of all pleadings for inspection and copying at reasonable times. A notice in the following form shall comply with this paragraph: (Name of employer) Your employer has been cited by the Commissioner of the Department of Workplace Standards for violation of the Occupational Safety and Health Act of 1972. The citation has been contested and will be the subject of a hearing before the Occupational Safety and Health Review Commission. Affected employees are entitled to participate in this hearing as parties under terms and conditions established by the Occupational Safety and Health Review Commission in its rules of procedure. Notice of intent to participate shall be sent to: Kentucky Occupational Safety and Health Review Commission #4 Millcreek Park Frankfort, Kentucky 40601 All papers relevant to this matter may be inspected at: (Place shall be reasonably convenient to employees, preferably at or near work place.)

(8) If appropriate, the second sentence of the notice required by subsection (7) of this section shall be deleted and the following sentence shall be substituted: The reasonableness of the period prescribed by the Commissioner of the Department of Workplace Standards for abatement of the violation has been contested and will be the subject of a hearing before the Occupational Safety and Health Review Commission.

(9) The authorized employee representative, if any, shall be served with the notice required by subsections (7) and (8) of this section and with a copy of the notice of contest.

(10) A copy of the notice of the hearing to be held before the hearing officer shall be served by the employer on affected employees who are not represented by an authorized employee representative by posting a copy of the notice of the hearing at or near the place where the citation is required to be posted by subsection (7) of this section.

(11) A copy of the notice of the hearing to be held before the hearing officer shall be served by the employer on the authorized employee representative or affected employees in the manner prescribed in subsection (3) of this section, if the employer has not been informed that the authorized employee representative has entered an appearance as of the date the notice is received by the employer.

(12) If a notice of contest is filed by an affected employee or an authorized employee representative, a copy of the notice of contest and response filed in support shall be provided to the employer for posting in the manner prescribed in subsection (7) of this section.

(13) An authorized employee representative who files a notice of contest shall serve any other authorized employee representative whose members are affected employees.

(14) If posting is required by this section, posting shall be maintained until the commencement of the hearing or until earlier disposition.

Section 10. Consolidation. Cases may be consolidated on the motion of a party, on the hearing officer's own motion, or on the commission's own motion if there are common parties, common questions of law or fact, or both, or in other circumstances as justice and the administration of the Act require.

Section 11. Severance. Upon its own motion, or upon motion of a party or intervenor, the commission or the hearing officer may, for good cause, order a proceeding severed with respect to some or all issues or parties.

Section 12. Protection of Trade Secrets and Other Confidential Information.

(1) Upon application by any person, in a proceeding where trade secrets or other matters may be divulged, the confidentiality of which is protected by law, the hearing officer shall issue orders as may be appropriate to protect the confidentiality of those matters.

(2) Interlocutory appeal from an adverse ruling under this section shall be granted as a matter of right.

Section 13. Employer or Employee Contests.

(1) If a notice of contest is filed by an employer contesting a citation or notification issued pursuant to KRS 338.031(1), 338.141(3), or 338.153, an employee or an authorized employee representative may elect party status by a request for intervention at any time before commencement of the hearing or, if no hearing is held, before notice of an executed settlement agreement has been served according to Section 51(3) of this administrative regulation.

(2) If a notice of contest is filed by an employee or by an authorized employee representative contesting a citation or notification issued pursuant to KRS 338.031(1), 338.141(3), or 338.153, the employer may elect party status at any time before commencement of the hearing or, if no hearing is held, before notice of an executed settlement agreement has been served according to Section 51(3) of this administrative regulation.

Section 14. Intervention.

(1) A petition for leave to intervene may be filed at any stage of a proceeding before commencement of the hearing, or if there is a settlement or dismissal, before issuance of a recommended order.

(2) The petition shall state the interest of the petitioner in the proceeding and show that participation of the petitioner will assist in the determination of the issues in question and that the intervention will not unnecessarily delay the proceeding.

(3) The commission or the hearing officer may grant a petition for intervention to the extent and upon those terms as the commission or the hearing officer shall determine.

(4) The caption of all cases where intervention is allowed shall reflect the intervention by adding, to the caption after the name of the respondent, the name of the intervenor followed by the designation intervenor.

Section 15. Representatives of Parties and Intervenors.

(1) Except for natural persons who may represent themselves, a party or intervenor shall appear through an attorney.

(2) A representative of a party or intervenor shall control all matters respecting the interest of the party or intervenor in the proceeding.

(3) Affected employees who are represented by an authorized employee representative may appear only through an attorney for the authorized employee representative.

(4) Affected employees who are not represented by an authorized employee representative may elect party status by filing a request for intervention.

(5) Withdrawal of appearance of a representative may be effected by filing a written notice of withdrawal and by serving a copy of the notice on all parties and intervenors.

Section 16. Variance Contests.

(1) An employer, employee or authorized employee representative who receives notification of an adverse ruling to an application for a variance made pursuant to KRS 338.153 may, within fifteen (15) working days of issuance of the ruling, file a notice of contest with the commissioner. The commissioner shall transmit the notice, together with the complete record in the matter as compiled before the commissioner, to the commission within seven (7) days of receipt, under authority of KRS 338.071(4).

(2) The commission may on its own order or on motion of a party, if granted, consider the matter on the record or may require further hearing or filings of information in the matter.

(3) All pertinent provisions relating to contests of citations, if applicable, shall apply.

Section 17. Request for Extension or Modification of Abatement.

(1) A party adversely affected by a ruling of the commissioner on an application for extension or modification of an abatement period may file an appeal from the notification with the commissioner, if an appeal is filed within fifteen (15) working days from receipt of the notice. The appeal shall be limited to the commissioner's ruling affecting the party's application for extension or modification of the abatement period.

(2) The commissioner shall transmit the appeal to the commission within seven (7) days after its receipt, together with all pertinent and relevant records considered by the commissioner in making the ruling.

(3) The commissioner shall file a response to the appeal within ten (10) days of receipt of notice of the appeal.

(4) The commission may on its own order or on motion of a party, if granted, consider the matter on the record or may require further hearing, pleading, or information in the matter.

Section 18. Form.

(1) Except as provided in this section, there are no specific requirements as to the form of any pleading. A pleading is simply required to contain a caption sufficient to identify the parties in accordance with Section 19 of this administrative regulation which shall include the commission's docket number and a clear and plain statement of the relief that is sought, together with the grounds for the requested relief.

(2) Pleadings and other documents (other than exhibits) shall be typewritten, double spaced.

(3) Pleadings shall be signed by the party filing or by the party's representative. Signing constitutes a representation that the signer has read the document or pleading; that to the best of the signer's knowledge, information, and belief, the statements made therein are true, and that it is not interposed for delay.

(4) The commission may refuse for filing any pleading or document which does not comply with the requirements of subsections (1), (2), and (3) of this section.

(5) All pleadings shall be filed in duplicate unless otherwise indicated.

(6) A pleading shall be assumed to be correct as submitted unless a reply or denial is received within ten (10) days of receipt of the pleading.

Section 19. Captions.

(1) Cases initiated by a notice of contest shall be titled: Commissioner of the Department of Workplace Standards, Complainant v. (Name of Contestant), Respondent.

(2) Cases initiated from an adverse ruling of the commissioner of the Department of Workplace Standards relative to a variance or by a request for extension or modification of the abatement period shall be titled: (Name of Petitioner), Petitioner v. Commissioner of the Department of Workplace Standards, Respondent.

(3) The titles listed in subsections (1) and (2) of this section shall appear at the left upper portion of the initial page of any pleading or document (other than exhibits) filed.

(4) The initial page of any pleading or document (other than exhibits) shall show, at the upper right of the page opposite the title, the docket number assigned by the commission.

Section 20. Notices of Contest of Citations.

(1) Any employer, employee or authorized employee representative may contest any citation issued pursuant to KRS 338.141.

(2) If a notice of contest is received by the commissioner, the original and one (1) copy of the notification of contest shall be transmitted to the commission together with copies of all relevant documents, within seven (7) days of receipt of notice by the commissioner.

(3) Complaint.

(a) The commissioner shall file a complaint with the commission no later than twenty (20) days after receiving the notice of contest.

(b) The complaint shall set forth all alleged violations and proposed penalties which are contested, stating with particularity:

1. The basis for jurisdiction;

2. The time, location, place, and circumstances of each alleged violation; and

3. The considerations upon which the period for abatement and the proposed penalty on each alleged violation is based.

(c) If the commissioner seeks in the complaint to amend the citation or proposed penalty, the commissioner shall state the reasons for amendment and shall state with particularity the change sought.

(d) The commissioner shall ensure that a copy of the complaint is personally served on the employer as required by this paragraph.

1. An employer who is an individual within the Commonwealth. Service shall be made upon the individual within the Commonwealth, other than an unmarried infant or person of unsound mind, by delivering a copy of the complaint to the person or, if acceptance is refused, by offering personal delivery to the person, or by delivering a copy of the complaint to an agent authorized by appointment or by law to receive service of process for the individual.

2. An employer who is an infant or person of unsound mind. Service shall be made upon an unmarried infant or a person of unsound mind by serving the person's resident guardian or committee if there is one known to the commissioner or, if none, by serving either the person's father or mother within the Commonwealth or, if none; by serving the person within the Commonwealth having control of the individual. If there are no persons, application shall be made to the appropriate court to appoint a practicing attorney as guardian ad litem who shall be served.

3. An employer which is a partnership or unincorporated association. Service shall be made upon a partnership or unincorporated association subject to suit under a common name by serving a partner or managing agent of the partnership, or an officer or managing agent of the association, or an agent authorized by appointment or by law to receive service on its behalf.

4. An employer which is a corporation. Service shall be made upon a corporation by serving an officer or managing agent, or any other agent authorized by appointment or by law to receive service on its behalf.

5. An employer which is the Commonwealth or a state agency. Service shall be made upon the Commonwealth or a state agency by serving the attorney general or an assistant attorney general.

6. An employer which is a county, city, public board, or other similar body. Service shall be made upon a county by serving the county judge or, if he is absent from the county, the county attorney. Service shall be made upon a city by serving its chief executive officer or official attorney. Service on a public board or other similar body, except state agencies, shall be made by serving a member.

7. An employer which is an individual out of this state. Service may be made upon an individual out of this Commonwealth, other than an unmarried infant, a person of unsound mind or a prisoner, by certified mail or by personal delivery by someone who is over eighteen (18) years of age as prescribed in paragraph (e) of this subsection.

8. A nonresident employer. Service may be made upon a nonresident individual who transacts business through an office or agency in this Commonwealth, or a resident individual who transacts business through an office or agency in any action growing out of or connected with the business of an office or agency, by serving the person in charge.

(e) Manner of service. The commissioner shall arrange for an authorized person to perform personal delivery or serve the complaint through certified or registered mail.

1. Personal Delivery. The commissioner shall arrange for an authorized person to perform service. Proof of service shall be by affidavit of the person making the service stating the time, place, and the individual who accepted or refused a copy of the complaint on behalf of the employer.

2. Certified or Registered Mail. The commissioner shall send a copy of the complaint to the employer by United States certified or registered mail, return receipt requested with instructions to the delivering postal employee to deliver to the addressee and show the address where delivered and the date of delivery. The return receipt shall be proof of the time, place, and manner of service by registered or certified mail.

3. Service of the complaint is effective upon receipt by the employer. The commissioner shall file proof of service with the commission promptly after service, and, in any event, within the time during which the employer shall respond to the complaint.

(4) Answer.

(a) Within fifteen (15) days after service of the complaint, the party against whom the complaint was issued shall file an answer with the commission.

(b) The answer shall contain a short and plain statement denying those allegations in the complaint which the party intends to contest. Any allegation not denied is admitted.

(c) Failure to file an answer may constitute a default and dismissal of the employer's notice of contest pursuant to Section 23 of this administrative regulation. Prior to the dismissal of a notice of contest for failing to file an answer, the commission shall enter an order requiring the employer to show cause as to why the commission should not declare the employer to be in default. The commission shall serve its order pursuant to Section 9 of this administrative regulation. The order shall provide at least seven (7) days from the date of service for the employer to respond. The commission may dismiss the notice of contest if the employer fails to comply with the show cause.

Section 21. Statement of Position. At any time prior to the commencement of the hearing before the hearing officer, a person entitled to appear as a party, or a person who has been granted leave to intervene, may file a statement of position with respect to any or all issues to be heard.

Section 22. Response to Motions. A party or intervenor upon whom a motion is served shall have ten (10) days from service of the motion to file a response.

Section 23. Failure to File. Failure to file any pleading pursuant to these rules when due may, in the discretion of the commission or the hearing officer, constitute a waiver of right to further participation in the proceedings.

Section 24. Withdrawal of Notice of Contest. At any stage of a proceeding, a party may withdraw his or her notice of contest, subject to the approval of the commission.

Section 25. Prehearing Conference.

(1) At any time before a hearing, the commission or the hearing officer, on their own motion or on motion of a party, may direct the parties or their representatives to exchange information or to participate in a prehearing conference for the purpose of considering matters which will tend to simplify the issues or expedite the proceedings.

(2) The commission or the hearing officer may issue a prehearing order which includes the agreements reached by the parties. The order shall be served on all parties and shall be a part of the record.

Section 26. General Provisions Concerning Discovery; Methods; Service of Discovery Papers; Scope of Discovery; Protective Orders; Sanctions; Supplementation of Responses.

(1) In conformity with this section, any party may, without leave of the commission or hearing officer, obtain discovery through requests for admissions, interrogatories, and requests for production or inspection as set forth in Section 27 of this administrative regulation. Discovery shall not be available through depositions under Section 28 of this administrative regulation without leave of the commission or hearing officer.

(2) Every paper relating to discovery required to be served on a party shall be served on all parties pursuant to Section 9 of this administrative regulation. Requests for production or inspection, requests for admission and responses, interrogatories and answers, and discovery depositions shall be served upon other counsel or parties, but shall not be filed with the commission or hearing officer. If the interrogatories, requests, answers, responses, or depositions are to be used at the hearing or are necessary to a prehearing motion that might result in a final order on any claim, the portions used shall be filed with the hearing officer or commission at the outset of the hearing or at the filing of the motion if their use can be reasonably anticipated.

(3) The information or response sought through discovery may concern any matter that is not privileged and is relevant to the subject matter involved in the pending case. It shall not be a ground for objection that the information or response sought will be inadmissible at the hearing, if the information or response appears reasonably calculated to lead to the discovery of admissible evidence, regardless of which party has the burden of proof.

(4) Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the hearing officer or commission may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(a) That the discovery not be had;

(b) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(c) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(d) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(e) That discovery be conducted with no one present except persons designated by the commission or hearing officer;

(f) That a deposition after being sealed be opened only by order of the commission or hearing officer;

(g) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; or

(h) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the commission or hearing officer.

(5) A party may apply for an order compelling discovery if another party refuses or obstructs discovery. An evasive or incomplete answer shall be treated as failure to answer. If a hearing officer enters an order compelling discovery and there is failure to comply with that order, the hearing officer or commission may enter appropriate orders that are just, including the following sanctions:

(a) An order that designated facts shall be taken to be established for purposes of the case in accordance with the claim of the party obtaining that order;

(b) An order refusing to permit the disobedient party to support or oppose designated claims or defenses, or prohibiting it from introducing matters in evidence;

(c) An order striking out pleadings or any of its parts, or staying further proceedings until the order is obeyed; or

(d) An order dismissing the proceeding or any of its parts, or rendering an order by default against the disobedient party.

(6) A party who has responded to a request for discovery with a response that was complete when made shall not have to supplement the response to include information acquired later, except as established by this subsection.

(a) A party shall seasonably supplement the response with respect to any questions directly addressed to:

1. The identity and locations of persons having knowledge of discoverable matters; and

2. The identity of each person expected to be called as an expert witness at the hearing, the subject matter on which the person is expected to testify, and the substance of the person's testimony.

(b) A party shall seasonably amend a prior response if the party obtains information upon the basis of which:

1. The party knows that the response was incorrect when made; or

2. The party knows that the response though correct when made is no longer true and under the circumstances, a failure to amend the response is in substance a knowing concealment.

(c) A duty to supplement responses may be imposed by order of the commission or hearing officer, agreement of the parties, or at any time prior to the hearing through a new request for supplementation of prior responses.

Section 27. Requests for Admissions, Interrogatories, Production of Documents and Things.

(1) Requests for Admissions.

(a) At any time after the filing of responsive pleadings, a party may request of any other party written requests for admissions, for the purposes of the pending action only, of the genuineness and authenticity of any document described in or attached to the requests, or of the truth of any specified matter of facts to be made under oath. Each matter of which an admission is requested shall be stated separately. The number of requested admissions shall not exceed twenty-five (25), including subparts, without an order of the commission or hearing officer. The party seeking more than twenty-five (25) requested admissions, including subparts, shall have the burden of persuasion to establish that the complexity of the case or the number of citation items necessitates a greater number of requested admissions.

(b) Each admission requested shall be stated separately. The matter shall be admitted unless, within thirty (30) days after service of the request or within a shorter or longer time as the commission or the hearing officer may prescribe, the party to whom the request is directed serves upon the party requesting the admission a written response specifically:

1. Admitting or denying the matter involved in whole or in part;

2. Asserting that it cannot be truthfully admitted or denied and stating in detail the reasons why this is so; or

3. Stating an objection, explaining in detail the reason for the objection. The response shall be made under oath or affirmation and signed by the party or the party's representative.

(c) Any matter admitted under this subsection shall be conclusively established unless the commission or hearing officer on motion permits withdrawal or amendment of the admission. The commission or hearing officer may permit withdrawal or amendment if doing so will subserve the presentation of the merits of the case and the party who obtained the admission fails to satisfy the commission or hearing officer that withdrawal or amendment will prejudice that party in presenting his or her case or defense on the merits.

(2) Interrogatories.

(a) At any time after the filing of responsive pleadings, a party may serve interrogatories upon any other party. The number of interrogatories shall not exceed twenty-five (25) questions, including subparts, without an order of the commission or hearing officer. The party seeking to serve more than twenty-five (25) questions, including subparts, shall have the burden of persuasion to establish that the complexity of the case or the number of citation items necessitates a greater number of interrogatories. The following shall not be included in the maximum allowed:

1. Interrogatories requesting the name and address of the person answering;

2. The names and addresses of the witnesses; and

3. Whether the person answering is willing to supplement his or her answers if information subsequently becomes available.

(b) Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless it is objected to. If objected to, the reasons for objection shall be stated instead of an answer. The answers shall be signed by the person making them and the objections by the party or the party's counsel. The party upon whom the interrogatories have been served shall serve a copy of answers or objections upon all parties within thirty (30) days after service of the interrogatories. The hearing officer may allow a shorter or longer time.

(c) An interrogatory shall not necessarily be objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact.

(3) Production of documents and things.

(a) At any time after the filing of responsive pleadings, a party may serve on any other party a request to:

1. Produce or permit the party making the request, or a person acting on his or her behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things which are in the possession, custody, or control of the party upon whom the request is served; or

2. Permit entry upon the designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operations on the property.

(b) The request shall state items to be inspected either by individual item or category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing related acts. The party upon whom the request is made shall serve a written response within thirty (30) days after the service of the request. The hearing officer may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to. If objected to, the reasons for objection shall be stated.

Section 28. Discovery Depositions.

(1) Except by special order of the commission or the hearing officer, discovery depositions of parties, intervenors, or witnesses shall not be allowed.

(2) A party wishing to take a discovery deposition shall file a written application with the commission or hearing officer and shall serve the application on all other parties and intervenors not less than fourteen (14) days prior to the time when it is desired to take the discovery deposition. The application shall state the reasons why the deposition should be taken and shall contain:

(a) The name and address of the deponent;

(b) The scope of questioning expected to be asked of the deponent;

(c) The time and place proposed for the taking of the deposition; and

(d) The name and address of the officer before whom it is desired that the deposition be taken.

(3) If the commission or the hearing officer grants an application for the conduct of discovery depositions, the order shall state appropriate scope and time limits for the discovery.

(4)

(a) Except as provided in paragraph (b) of this subsection, the procedure for taking the deposition shall be governed by Section 40(3) of this administrative regulation.

(b) A discovery deposition transcript shall not be delivered to the executive director as required by Section 40(3) of this administrative regulation.

(c) The officer before whom the deposition is taken shall meet the requirements of Section 40(2) of this administrative regulation.

Section 29. Issuance of Subpoenas; Petitions to Revoke or Modify Subpoenas; Right to Inspect or Copy Data.

(1) A member of the commission shall, on the application of a party directed to the commission, forthwith issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence, including relevant books, records, correspondence or documents in the witness's possession or under the witness's control. Applications for subpoenas, if filed subsequent to the assignment of the case to a hearing officer, may be filed with the hearing officer. A hearing officer shall grant the application on behalf of any member of the commission. Applications for subpoenas may be made ex parte. The subpoena shall show on its face the name and address of the party at whose request the subpoena was issued.

(2) A person served with a subpoena, whether ad testificandum or duces tecum, shall within five (5) days after the date of service of the subpoena upon him move in writing to revoke or modify the subpoena if he does not intend to comply. Motions to revoke or modify shall be served on the party at whose request the subpoena was issued. The hearing officer or the commission, as the case may be, shall revoke or modify the subpoena if, in its opinion the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. The hearing officer or the commission, as the case may be, shall make a simple statement of procedural or other grounds for the ruling on the motion to revoke or modify. The motion to revoke or modify, any answer filed in response, and the ruling on the motion shall become a part of the record.

(3) Persons compelled to submit data or evidence at a public proceeding may retain or, on payments of lawfully prescribed costs, procure copies of transcripts of the data or evidence submitted by them.

(4) Upon the failure of any person to comply with a subpoena issued upon the request of a party, the party seeking to enforce the challenged subpoena shall initiate proceedings in the Franklin Circuit Court or appropriate circuit court to enforce the subpoena if, in its judgment enforcement would be consistent with law and with policies of the Act.

Section 30. Notice of Hearing.

(1) Notice of the time, place, and nature of a hearing shall be given to the parties and intervenors at least ten (10) days in advance of the hearing, except as otherwise provided in Section 52 of this administrative regulation.

(2) Copy of notice of hearing shall be served by the employer on affected employees or the affected employees' representative as provided in Section 9(9) and (10) of this administrative regulation, if no information has been received by the employer as to the employee intervention in the case before the commission. Notice of hearing shall be given by the commission to any party or intervenor.

(3) The hearing officer shall secure or cause to be secured a location for the hearing and secure a reporter for the taking of proof at any hearing.

Section 31. Postponement of Hearing.

(1) Postponement of a hearing ordinarily shall not be allowed.

(2) Except in the case of an extreme emergency or in unusual circumstances, a request shall not be considered unless received in writing at least three (3) days in advance of the time set for the hearing.

(3) Postponement of hearing not in excess of thirty (30) days may be granted in the discretion of the hearing officer. One (1) additional postponement not in excess of thirty (30) days may be granted by the hearing officer in extreme emergency or under unusual circumstances. An additional postponement shall not be granted without commission approval.

Section 32. Failure to Appear.

(1) Subject to the provisions of subsection (3) of this section, the failure of a party to appear at a hearing shall be a waiver of all rights except the rights to be served with a copy of the decision of the hearing officer and to request commission review pursuant to Section 48 of this administrative regulation.

(2) Requests for reinstatement shall be made, in the absence of extraordinary circumstances, within five (5) days after the scheduled hearing date.

(3) The commission or the hearing officer upon a showing of good cause may excuse the failure to appear. If excused, the hearing shall be rescheduled.

Section 33. Payment of Witness Fees and Mileage; Fees of Persons Taking Depositions. Witness fees and mileage shall be paid by the party at whose instance the witness appears, and the person taking a deposition shall be paid by the party at whose instance the deposition is taken.

Section 34. Reporter's Fees. Reporter's fees shall be borne by the commission, except as provided in Section 33 of this administrative regulation.

Section 35. Transcript of Testimony. Hearings shall be transcribed verbatim. A copy of the transcript of testimony taken at the hearing, duly certified by the reporter, shall be filed with the hearing officer before whom the matter was heard. The hearing officer shall promptly serve notice upon each of the parties and intervenors of the filing. Participants desiring copies of transcripts may obtain them from the official reporter after paying the transcript fees.

Section 36. Duties and Powers of Hearing Officers. The hearing officer shall conduct a fair and impartial hearing to assure that the facts are fully elicited and to adjudicate all issues and avoid delay. The hearing officer shall have authority with respect to cases assigned to him, between the time he is designated and the time he issues his decision, subject to this administrative regulation, to:

(1) Administer oaths and affirmations;

(2) Issue authorized subpoenas;

(3) Rule upon petitions to revoke subpoenas;

(4) Rule upon offers of proof and receive relevant evidence;

(5) Take or cause depositions to be taken if the needs of justice would be served;

(6) Regulate the course of the hearing and, if appropriate or necessary, exclude persons or counsel from the hearing for contemptuous conduct and strike all related testimony of witnesses refusing to answer any proper questions;

(7) Hold conferences for the settlement or simplification of the issues;

(8) Dispose of procedural requests or similar matters including motions referred to the hearing officer by the commission and motions to amend pleadings; to dismiss complaints or portions of them; and to order hearings reopened or, upon motion, consolidated prior to issuance of his decision;

(9) Call and examine witnesses and to introduce into the record documentary or other evidence;

(10) Request the parties at any time during the hearing to state their respective positions concerning any issue in the case or theory in support of their positions;

(11) Adjourn the hearing as the needs of justice and good administration require; and

(12) Take any other action necessary and authorized by this administrative regulation.

Section 37. Disqualification of Hearing Officer.

(1) A hearing officer may withdraw from a proceeding if disqualification is warranted.

(2) A party may request the hearing officer at any time, following his designation and before the filing of his decision, to withdraw on grounds of personal bias or disqualification by filing with him promptly upon the discovery of the alleged facts an affidavit setting forth in detail the matters alleged to constitute grounds for disqualification.

(3) If, in the opinion of the hearing officer the affidavit referred to in subsection (2) of this section is filed with due diligence and is sufficient on its face, the hearing officer shall forthwith disqualify himself and withdraw from the proceeding.

(4) If the hearing officer does not disqualify himself and withdraw from the proceedings, he shall so rule upon the record, stating the grounds for his ruling, and shall proceed with the hearing; or, if the hearing has closed, he shall proceed with the issuance of his decision in accordance with Section 47 of this administrative regulation.

Section 38. Examination of Witnesses. Witnesses shall be examined orally under oath. Opposing parties shall have the right to cross-examine any witness whose testimony is introduced by an adverse party.

Section 39. Affidavits. An affidavit may be admitted as evidence in lieu of oral testimony if the matters contained in the affidavit are otherwise admissible and the parties agree to its admission.

Section 40. Deposition in Lieu of Oral Testimony; Application; Procedures; Form; Rulings.

(1)

(a) An application to take the deposition of a witness in lieu of oral testimony shall be in writing and shall state the reasons a deposition should be taken. The application shall contain:

1. The name and address of the witness;

2. The matters the witness is expected to testify about;

3. The time and place proposed for the taking of the deposition; and

4. The name and address of the officer before whom it is desired that the deposition be taken. The officer shall meet the requirements of subsection (2) of this section.

(b) The application shall be filed with the commission or the hearing officer, as the case may be, and shall be served on all other parties and intervenors not less than seven (7) days (when the deposition is to be taken elsewhere) prior to the time when it is desired that the deposition be taken.

(c) If good cause has been shown, the commission or the hearing officer shall make and serve on the parties and intervenors an order which specifies the name of the witness whose deposition is to be taken and the time, place, and designation of the officer before whom the witness is to testify. The officer may or may not be the officer specified in the application.

(2) The deposition may be taken before an officer authorized to administer oaths by the laws of Kentucky or of the place where the examination is held. If the examination is held in a foreign country, it may be taken before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States.

(3) At the time and place specified in the order, the officer designated to take the deposition shall permit the witness to be examined and cross-examined under oath by all parties appearing, and the testimony of the witness shall be reduced to typewriting by the officer or under his direction. All objections to questions or evidence shall be waived, unless made at the examination. The officer shall not have power to rule upon any objection, but he shall note them upon the deposition. The testimony shall be subscribed by the witness in the presence of the officer who shall attach his certificate stating that the witness was duly sworn by him; that the deposition is a true record of the testimony and exhibits given by the witness; and that the officer is not of counsel or attorney to any of the parties nor interested in the proceeding. If the deposition is not signed by the witness because he is ill, dead, cannot be found, refuses to sign it, or will be unavailable to sign the typed deposition and it is so stated by agreement, the fact shall be included in the certificate of the officer and the deposition may be used as fully as though signed. The officer shall immediately deliver an original of the transcript, together with his certificate, in person or by certified mail to the Executive Director, Kentucky Occupational Safety and Health Review Commission, #4 Millcreek Park, Frankfort, Kentucky 40601.

(4) The hearing officer shall rule upon the admissibility of the deposition or any part of it.

(5) Errors or irregularities in compliance with the provisions of this section shall be waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after the defect is, or with due diligence might have been, discovered.

(6) If the parties so stipulate in writing, depositions may be taken before any person at any time or place, upon any notice and in any manner, and when so taken may be used as other depositions.

Section 41. Exhibits.

(1) All exhibits offered in evidence shall be numbered and marked with a designation identifying the party or intervenor by whom the exhibit is offered.

(2) In the absence of objection by another party or intervenor, exhibits shall be admitted into evidence as a part of the record, unless excluded by the hearing officer pursuant to Section 42 of this administrative regulation.

(3) Unless the hearing officer finds it impractical, a copy of each exhibit shall be given to the other parties and intervenors.

(4) All exhibits offered but denied admission into evidence shall be identified as in subsection (1) of this section and shall be placed in a separate file designated for rejected exhibits.

Section 42. Rules of Evidence. Hearings before the commission and its hearing officers insofar as practicable shall be governed by the Kentucky Rules of Evidence.

Section 43. Burden of Proof.

(1) In all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the commissioner.

(2) In proceedings commenced by a request for extension or modification of the abatement period, the burden of establishing the necessity for the extension or modification shall rest with the petitioner.

(3) In all proceedings commenced by appealing from an adverse ruling on a variance application, the burden of proving the inequity of the ruling of the commissioner of the Department of Workplace Standards shall rest on the petitioner-complainant.

Section 44. Objections.

(1) An objection with respect to the conduct of the hearing, including an objection to the introduction of evidence or a ruling of the hearing officer, may be stated orally or in writing, accompanied by a short statement of the grounds for the objection, and shall be included in the record. An objection shall not be waived by further participation in the hearing.

(2) If evidence is excluded from the record, the party offering the evidence may make an offer of proof, which shall be included in the record of the proceeding.

Section 45. Interlocutory Appeals; Special; as of Right.

(1) Rulings by the hearing officer shall not be appealed directly to the commission except by its special permission.

(2) Request to the commission for special permission to appeal from a ruling shall be filed in writing within five (5) days following receipt of the ruling and shall state briefly the grounds relied on.

(3) Interlocutory appeal from a ruling of the hearing officer shall be allowed as of right if the hearing officer certifies that:

(a) The ruling involves an important question of law concerning which there is substantial ground for difference of opinion; and

(b) An immediate appeal from the ruling will materially expedite the proceedings. An appeal shall also be allowed in the circumstances set forth in Section 12 of this administrative regulation.

(4) Neither the filing of a petition for interlocutory appeal nor the granting thereof as provided in subsections (2) and (3) of this section shall stay the proceedings before the hearing officer unless a stay is specifically ordered by the commission.

Section 46. Filing of Briefs and Proposed Findings with the Hearing Officer; Oral Argument at the Hearing.

(1) Any party shall be entitled, upon request, to a reasonable period at the close of the hearing for oral argument, which shall be included in the stenographic report of the hearing. Any party shall be entitled, upon request made before the close of the hearing, to file a brief, proposed findings of fact and conclusions of law, or both, with the hearing officer. The hearing officer may fix a reasonable period of time for the filing, but the initial period shall not exceed thirty (30) days from the receipt by the party of the transcript of the hearing or the date the hearing officer designates by order of his receipt. The complainant shall have fifteen (15) days to file, the respondent ten (10) days and the complainant five (5) days for reply, unless a shorter period is agreed on by all parties. Intervenors shall have until the 25th day of the thirty (30) day period in which to file briefs.

(2) A brief shall be filed within the time fixed and the hearing officer or the commission may refuse to consider any brief filed after the deadline. Application for extension of time to file briefs shall be made to the hearing officer or commission before whom the hearing was held.

(3) Briefs shall be accompanied with notice showing service upon all other parties; in addition to the original filed, three (3) copies of each document shall be furnished to the commission.

Section 47. Decisions of Hearing Officers.

(1) The decision of the hearing officer shall include findings of fact, conclusions of law, and a recommended order disposing of all issues before the hearing officer.

(2) The hearing officer shall sign the decision and forward to the executive director. The executive director shall then date and issue the decision, sending a copy to all parties of record and to each commission member. Upon issuance of the recommended order, jurisdiction shall rest solely in the commission, and all motions, petitions, and other pleadings filed subsequent to its issuance shall be addressed to the commission.

(3) The recommended order of the hearing officer may be called for further review by any commission member or by the commission as a whole at any time within a forty (40) day period. If the recommended order is not ordered for further review, it shall become the final order of the commission forty (40) days after date of issuance. If a recommended order is called for review by a commission member or the commission on its own order, parties shall be advised in order that briefs may be submitted if desired. The commission shall set the briefing time.

Section 48. Discretionary Review; Petition.

(1) A party aggrieved by the decision of a hearing officer may submit a petition for discretionary review.

(2) The petition shall be received by the commission at its offices in Frankfort, Kentucky on or before the 25th day following receipt by the commission of the hearing officer's decision.

(3) A petition shall contain a concise statement of each portion of the decision and order to which exception is taken and may be accompanied by a brief of points and authorities relied upon. The original and three (3) copies shall be filed with the commission.

(4) Statements in opposition to petitions for discretionary review may be filed at any time during the review period, if received by the commission on or before the 35th day from date of issuance of the recommended order. The statement shall contain a concise statement on each portion of the petition for discretionary review to which it is addressed.

(5) The commission while reviewing a case may request briefs on any point, and shall set the time for filing.

(6) The original and three (3) copies of all briefs or statements provided for under this section and Section 47 of this administrative regulation shall be furnished for use of the commission.

(7) Failure to act on any petition for discretionary review in the review period shall be a denial of the petition.

Section 49. Stay of Final Order.

(1) A party aggrieved by a final order of the commission may, while the matter is within the jurisdiction of the commission, file a motion for a stay.

(2) The motion shall state the reasons a stay is sought and the length of the stay requested.

(3) The commission may order a stay for the period requested or for a longer or shorter period as it finds appropriate.

Section 50. Oral Argument Before the Commission.

(1) Oral argument before the commission ordinarily shall not be allowed.

(2) If the commission desires to hear oral argument with respect to any matter, it shall advise all parties to the proceeding of the date, hour, place, time allotted, and scope of argument at least ten (10) days prior to the date set.

Section 51. Settlement or Dismissals.

(1) Settlement is encouraged at any stage of the proceedings if a settlement is consistent with the provisions and objectives of the Act.

(2) Settlement agreements submitted by the parties shall be accompanied by an appropriate proposed order. The settlement agreement shall detail the basis for settlement, either by order or a stipulated agreement properly signed by all parties.

(3) If parties to settlement agree upon a proposal, it shall be served upon represented and unrepresented affected employees in the manner set forth in Section 9 of this administrative regulation. Proof of service shall accompany the proposed settlement when submitted to the commission or the hearing officer showing the notice to employees or authorized employee representative ten (10) days before submission to the hearing officer or the commission.

(4) In an action on a citation on motion of either party for dismissal, the motion shall state the reason for dismissal and show posting for ten (10) days as required for settlement agreements by subsection (3) of this section. If dismissal is moved by the respondent, respondent shall also show abatement of cited violation and payment of any penalty, if applicable.

Section 52. Expedited Proceeding.

(1) Upon application of a party or intervenor, or upon a commissioner's own motion, a commission member may order an expedited proceeding.

(2) If an expedited proceeding is ordered, the executive director shall notify all parties and intervenors.

(3) The hearing officer assigned in an expedited proceeding shall make necessary rulings, with respect to time for filing of pleadings and with respect to all other matters, without reference to times required by this administrative regulation, shall order daily transcripts of the hearing, and shall do all other things necessary to complete the proceeding in the minimum time consistent with fairness.

Section 53. Standards of Conduct. Persons appearing in a proceeding shall conform to the standards of ethical conduct required in the courts of the Commonwealth of Kentucky.

Section 54. Ex Parte Communication.

(1) There shall not be ex parte communication, with respect to the merits of any case not concluded, between the commission, including a member, officer, employee, or agent of the commission who is employed in the decisional process, and a party or intervenor.

(2) If an ex parte communication occurs, the commission or the hearing officer may make orders or take action as fairness requires. Upon notice and hearing, the commission may take disciplinary action as is appropriate in the circumstances against any person who knowingly and willfully makes or solicits the making of a prohibited ex parte communication.

Section 55. Restrictions as to Participation by Investigative or Prosecuting Officers. In a proceeding noticed pursuant to this administrative regulation, the commissioner shall not participate or advise with respect to the report of the hearing officer or the commission decision.

Section 56. Inspection and Reproduction of Documents.

(1) Subject to the provisions of law restricting public disclosure of information, a person may, at the offices of the commission, inspect and copy any document filed in a proceeding.

(2) Costs shall be borne by the requesting person.

Section 57. Restrictions with Respect to Former Employees.

(1) A former employee of the commission or the commissioner (including a member of the commission or the executive director) shall not appear before the commission as an attorney for a party in a proceeding or other matter, formal or informal, in which the former employee participated personally and substantially during the period of employment.

(2) A former employee of the commission or the commissioner (including a member of the commission or the executive director) shall not appear before the commission as an attorney for a party in a proceeding or other matter, formal or informal, for which the former employee was personally responsible during the period of employment, unless one (1) year has elapsed since the termination of the employment.

Section 58. Amendments to Rules. The commission may at any time upon its own motion or initiative, or upon written suggestion of an interested person stating reasonable grounds in support, amend or revoke any of the rules contained in this administrative regulation, in compliance with KRS Chapter 13A.

Section 59. Special Circumstances, Waiver of Rules. In special circumstances not contemplated by this administrative regulation, or for good cause shown, the commission may, upon application by a party or intervenor, or on its own motion, after three (3) days notice to all parties and intervenors, waive any rule or issue orders as justice or the administration of the Act Requires.

Section 60. Penalties. All penalties assessed by the commission are civil.

History

• RELATES TO: KRS Chapter 338
• STATUTORY AUTHORITY: KRS 13B.020(3)(e)2a, 338.071, 338.081, 338.141
• NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.071 and 338.081 authorize the Kentucky Occupational Safety and Health Review Commission to hear and rule on appeals from citations, notifications, and variances and promulgate administrative regulations with respect to the procedural aspect of its hearings. According to KRS 13B.020(3)(e)2a, these occupational safety and health hearings are conducted under the authority of KRS 338.071(4), 338.081, and 338.141(3) rather than the hearing procedures in KRS Chapter 13B. This administrative regulation establishes procedures for these hearings and their proper disposition.
• History: KOSHRC-Proc.-1; 1 Ky.R. 349; eff. 2-5-1975; 2 Ky.R. 288; eff. 2-4-1976; 6 Ky.R. 62; eff. 9-5-1979; 23 Ky.R. 191; eff. 9-11-1996; 40 Ky.R. 1440; 2695; eff. 7-7-2014; 45 Ky.R. 780, 1193; eff. 12-7-2018; TAm eff. 3-28-2023; Cert. eff. 1-31-2025.