Chapter 101

101.055(4)(c) (c) Experimental variance. The department may grant an experimental variance if the public employer complies with par. (a) and the department determines that the variance is necessary to permit the employer to participate in an experiment approved by the department to demonstrate or validate new or improved techniques to safeguard the health or safety of employees.

101.055(4)(d) (d) Permanent variance. The department may grant a permanent variance if the public employer complies with par. (a) and the department finds the employer has demonstrated by a preponderance of the evidence that the conditions and methods the employer uses or proposes to use provide employment or a place of employment which is as safe and healthful as that provided under the standard from which the employer seeks a permanent variance. A permanent variance may be modified or revoked upon application by the employer, an affected employee, a public employee representative or the department and after opportunity for a hearing, but not sooner than 6 months after issuance of the permanent variance.

101.055(5) (5) Inspections.

101.055(5)(a) (a) A public employee or public employee representative who believes that a safety or health standard or variance is being violated, or that a situation exists which poses a recognized hazard likely to cause death or serious physical harm, may request the department to conduct an inspection. The department shall provide forms which may be used to make a request for an inspection. If the employee or public employee representative requesting the inspection so designates, that person’s name shall not be disclosed to the employer or any other person, including any agency except the department. If the department decides not to make an inspection, it shall notify in writing any employee or public employee representative making a written request. A decision by the department not to make an inspection in response to a request under this subsection is reviewable by the department under sub. (6) (a) 3. and is subject to judicial review under sub. (6) (a) 4.

101.055(5)(b) (b) An authorized representative of the department may enter the place of employment of a public employer at reasonable times, within reasonable limits and in a reasonable manner to determine whether that employer is complying with safety and health standards and variances adopted under subs. (3) and (4) or to investigate any situation which poses a recognized hazard likely to cause death or serious physical harm to a public employee regardless of whether a standard is being violated. No public employer may refuse to allow a representative of the department to inspect a place of employment. If an employer attempts to prevent a representative of the department from conducting an inspection, the department may obtain an inspection warrant under s. 66.0119. No notice may be given before conducting an inspection under this paragraph unless that notice is expressly authorized by the secretary or is necessary to enhance the effectiveness of the inspection.

101.055(5)(c) (c) A representative of the employer and a public employee representative shall be permitted to accompany a representative of the department on an inspection made under this subsection to aid in the inspection and to notify the inspector of any possible violation of a safety and health standard or variance or of any situation which poses a recognized hazard likely to cause death or serious physical harm to a public employee. The public employee representative accompanying the representative of the department on an inspection shall, with respect to payment received or withheld for time spent accompanying the department representative, receive treatment equal to that afforded to any representative of the employer who is present during an inspection, except that a public employer may choose to allow only one public employee representative at a time to accompany the department representative on an inspection without a reduction in pay. If a representative of the employer does not accompany the representative of the department on an inspection, at least one public employee representative shall be allowed to accompany the representative of the department on the inspection without a loss of pay. Where no public employee representative accompanies the representative of the department on an inspection, the representative of the department shall consult with a reasonable number of employees concerning matters of employee safety and health. The department shall keep a written record of the name of any person accompanying the department representative during the inspection, the name of any employee consulted and the name of any authorized collective bargaining agent notified of the inspection by the public employer under sub. (7) (e).

101.055(5)(d) (d) When making an inspection, a representative of the department may question privately any public employer or employee. No public employee shall suffer a loss in wages for time spent responding to any questions under this paragraph.

101.055(5)(e) (e) A representative of the department shall have access to the records required under sub. (7) (a) and (b) and to any other records maintained by a public employer which are related to the purpose of the inspection.

101.055(6) (6) Enforcement.

101.055(6)(a) (a) Orders.

101.055(6)(a)1. 1. ‘Issuance.’ If, as a result of inspection, the department finds a violation of a safety and health standard or variance or a condition which poses a recognized hazard likely to cause death or serious physical harm to a public employee, the department shall issue an order to the employer. A public employer who is in compliance with any standards or variances is deemed to be in compliance to the extent of the condition, practice, means, method, operation or process covered by that standard. The order shall describe the nature of the violation and the period of time within which the employer shall correct the violation. The department shall send a copy of the order to the top elected official of the political subdivision of which the public employer is a part and to the appropriate collective bargaining agent for the employees affected by the violation cited in the order, if a collective bargaining agent exists. If the order is issued as a result of an inspection requested by an employee or public employee representative, the department shall also send a copy of the order to that employee or public employee representative. Upon receipt of an order, the employer shall post the order at or near the site of violation for 3 days, or until the violation is abated, whichever is longer. The order shall be posted regardless of whether there has been a petition for a variance under sub. (4) or for a hearing under subd. 3. The employer shall ensure that the order is not altered, defaced or covered by other materials.

101.055(6)(a)2. 2. ‘Decision not to issue.’ If the department decides not to issue an order in response to a request for inspection filed under sub. (5) (a), it shall mail written notice of that decision to the public employee or public employee representative who requested the investigation. A decision under this subdivision is reviewable by the department under subd. 3.

101.055(6)(a)3. 3. ‘Review by department.’ A public employer or employee affected by an order or decision issued by the department under subd. 1. or 2. or sub. (5) (a) may obtain review of the order or decision by filing with the department a petition requesting a hearing and specifying the modification or change desired in the order or decision. A petition for a hearing must be filed with the department not later than 30 days after the order is issued or the written notification is mailed. If the department denies the request for a hearing, the denial shall be in writing and shall state the reasons for denial. If the department holds a hearing, it shall issue an order affirming, vacating or modifying the order or decision under subd. 1. or 2. or sub. (5) (a), within 30 days after the close of the hearing.

101.055(6)(a)4. 4. ‘Judicial review.’ Orders and denials of requests for hearings under subd. 3. are subject to judicial review under ch. 227.

101.055(6)(b) (b) Injunction. Whenever a hazard exists in a public employer’s place of employment which could reasonably be expected to cause death or serious physical harm before other procedures under this section can be carried out, the department may seek relief through an injunction or an action for mandamus as provided in chs. 783 and 813. If the department seeks an injunction or an action for mandamus, it shall notify the affected public employer and public employees of the hazard for which relief is being sought.

101.055(7) (7) Employer obligations for record keeping and notification.

101.055(7)(a) (a) A public employer shall maintain records of work-related injuries and illnesses and shall make reports of these injuries and illnesses to the department at time intervals specified by rule of the department. These records shall be available to the department, the employer’s employees and the employees’ representatives. This paragraph does not authorize disclosure of patient health care records except as provided in ss. 146.82 and 146.83.

101.055(7)(b) (b) A public employer shall maintain records of employee exposures to toxic materials and harmful physical agents which are required by safety and health standards adopted under sub. (3) to be monitored or measured. A representative of the department and any affected public employee and his or her public employee representative shall be permitted to observe the monitoring and measuring and shall have access to the employer’s records of the monitoring and measuring. This paragraph does not authorize disclosure of patient health care records except as provided in ss. 146.82 and 146.83.

101.055(7)(c) (c) A public employer shall promptly notify a public employee who has been or is being exposed to any toxic material or harmful physical agent at a level which exceeds that prescribed by the safety and health standards of the department and shall inform that public employee of any corrective action being taken.

101.055(7)(d) (d) A public employer shall notify its employees of their protections and rights under this section by posting a summary of these protections and rights in the place of employment where notices to employees are usually posted.

101.055(7)(e) (e) When a representative of the department enters a public employer’s place of employment to make an inspection, the employer shall notify an appropriate representative of any collective bargaining unit which represents the employer’s employees. The employer shall give the name of the collective bargaining unit representatives notified of the inspection to the department representative making the inspection.

101.055(8) (8) Protection of public employees exercising their rights.

101.055(8)(ag) (ag) In this subsection, “division of equal rights” means the division of equal rights in the department of workforce development acting under the authority provided in s. 106.54 (4).

101.055(8)(ar) (ar) No public employer may discharge or otherwise discriminate against any public employee it employs because the public employee filed a request with the department, instituted or caused to be instituted any action or proceeding relating to occupational safety and health matters under this section, testified or will testify in such a proceeding, reasonably refused to perform a task which represents a danger of serious injury or death or exercised any other right related to occupational safety and health which is afforded by this section.

101.055(8)(b) (b) A public employee who believes that he or she has been discharged or otherwise discriminated against by a public employer in violation of par. (ar) may file a complaint with the division of equal rights alleging discrimination or discharge, within 30 days after the employee received knowledge of the discrimination or discharge.

101.055(8)(c) (c) Upon receipt of a complaint, the division of equal rights shall, except as provided in s. 230.45 (1m), investigate the complaint and determine whether there is probable cause to believe that a violation of par. (ar) has occurred. If the division of equal rights finds probable cause it shall attempt to resolve the complaint by conference, conciliation or persuasion. If the complaint is not resolved, the division of equal rights shall hold a hearing on the complaint within 60 days after receipt of the complaint unless both parties to the proceeding agree otherwise. Within 30 days after the close of the hearing, the division of equal rights shall issue its decision. If the division of equal rights determines that a violation of par. (ar) has occurred, it shall order appropriate relief for the employee, including restoration of the employee to his or her former position with back pay, and shall order any action necessary to ensure that no further discrimination occurs. If the division of equal rights determines that there has been no violation of par. (ar), it shall issue an order dismissing the complaint.

101.055(8)(d) (d) Orders of the division of equal rights under this subsection are subject to judicial review under ch. 227.

101.055 Cross-reference Cross-reference: See also ch. DWD 223, Wis. adm. code.

101.055(9) (9) Coordination of state safety and health programs. The department shall coordinate state safety and health programs and shall plan and conduct comprehensive safety and health loss prevention programs for state employees and facilities.

101.055(10) (10) Exception for certain political subdivisions. The department is not required to expend any resources to enforce this section in political subdivisions having 10 or less employees unless it has received a complaint.

101.055 History History: 1981 c. 360, 391; 1985 a. 182 s. 57; 1991 a. 39; 1995 a. 27 ss. 3652 to 3659, 9130 (4); 1995 a. 342; 1997 a. 3; 1999 a. 82; 1999 a. 150 s. 672; 2003 a. 33; 2005 a. 74; 2013 a. 20.

101.055 Cross-reference Cross-reference: See also chs. SPS 303, 330, and 332, Wis. adm. code.

101.055 Annotation This section extends the coverage of the federal Occupational Safety and Health Act (OSHA) to government employees. OSHA is meant to address tangible, measurable workplace hazards. The threat of on-the-job violence to a campus police officer is too abstract to be within the coverage afforded. The denial of a request for a hearing on a complaint seeking to require the provision of firearms to officers was proper. West v. Department of Commerce, 230 Wis. 2d 71, 601 N.W.2d 307 (Ct. App. 1999), 98-1693.

101.10 101.10 Storage and handling of anhydrous ammonia; theft of anhydrous ammonia and anhydrous ammonia equipment.

101.10(1) (1) Definitions. In this section:

101.10(1)(a) (a) “Agricultural activity” means planting, cultivating, propagating, fertilizing, nurturing, producing, harvesting, or manufacturing agricultural, horticultural, viticultural, or dairy products; forest products; livestock; wildlife; poultry; bees; fish; shellfish; or any products of livestock, wildlife, poultry, bees, fish, or shellfish.

101.10(1)(b) (b) “Anhydrous ammonia equipment” means any equipment that is used in the application of anhydrous ammonia for an agricultural purpose or that is used to store, hold, transport, or transfer anhydrous ammonia.

101.10(1)(c) (c) “Transfer” means to remove from a container.

101.10(2) (2) Rules. The department shall promulgate rules that prescribe reasonable standards relating to the safe storage and handling of anhydrous ammonia.

101.10(3) (3) Prohibitions. No person may do any of the following:

101.10(3)(a) (a) Store, hold, or transport anhydrous ammonia in a container that does not meet all applicable requirements established by rules of the department promulgated under sub. (2).

101.10(3)(b) (b) Transfer or attempt to transfer anhydrous ammonia into a container that does not meet all applicable requirements established by rules of the department promulgated under sub. (2).

101.10(3)(c) (c) Transfer or attempt to transfer anhydrous ammonia without the consent of the owner of the anhydrous ammonia.

101.10(3)(d) (d) Intentionally cause damage to anhydrous ammonia equipment without the consent of the owner of the anhydrous ammonia equipment.

101.10(3)(e) (e) Intentionally take, carry away, use, conceal, or retain possession of anhydrous ammonia belonging to another or anhydrous ammonia equipment belonging to another, without the other’s consent and with intent to deprive the owner permanently of possession of the anhydrous ammonia or anhydrous ammonia equipment.

101.10(3)(f) (f) Intentionally release or allow the escape of anhydrous ammonia belonging to another into the atmosphere. This paragraph does not apply if the owner has authorized the actor to exercise control over the anhydrous ammonia or has consented to its release.

101.10(4) (4) Penalties.

101.10(4)(a) (a) Any person who violates a rule of the department promulgated under sub. (2) may be required to forfeit not less than $10 nor more than $100 for each violation.

101.10(4)(b) (b) Except as provided in par. (c), any person who violates sub. (3) is guilty of a Class I felony. Notwithstanding s. 101.02 (12), each act in violation of sub. (3) constitutes a separate offense.

101.10(4)(c) (c) Any person who violates sub. (3) (a) or (b) while performing an agricultural activity or while performing an activity related to the construction, repair, alteration, location, installation, inspection, or operation of anhydrous ammonia equipment with the consent of the owner of the anhydrous ammonia equipment may be required to forfeit not less than $10 nor more than $100 for each violation.

101.10 History History: 2001 a. 3, 16, 73, 109; 2005 a. 14.

101.10 Cross-reference Cross-reference: See also ch. SPS 343, Wis. adm. code.

101.11 101.11 Employer’s duty to furnish safe employment and place.

101.11(1) (1) Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.

101.11(2) (2) 

101.11(2)(a) (a) No employer shall require, permit or suffer any employee to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide and use safety devices and safeguards, or fail to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no such employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health, safety or welfare of such employees and frequenters; and no employer or owner, or other person shall hereafter construct or occupy or maintain any place of employment, or public building, that is not safe, nor prepare plans which shall fail to provide for making the same safe.

101.11(2)(b) (b) No employee shall remove, displace, damage, destroy or carry off any safety device or safeguard furnished and provided for use in any employment or place of employment, nor interfere in any way with the use thereof by any other person, nor shall any such employee interfere with the use of any method or process adopted for the protection of any employee in such employment or place of employment or frequenter of such place of employment, nor fail or neglect to do every other thing reasonably necessary to protect the life, health, safety or welfare of such employees or frequenters.

101.11(3) (3) This section applies to community-based residential facilities as defined in s. 50.01 (1g).

101.11 History History: 1971 c. 185; Stats. 1971 s. 101.11; 1975 c. 413; 1987 a. 161 s. 13m.

101.11 Cross-reference Cross-reference: See also chs. SPS 361, 362, 363, 364, and 365, Wis. adm. code.

101.11 Annotation Ordinary negligence can be compared with negligence founded upon the safe place statute. In making the comparison, a violation of the statute is not to be considered necessarily as contributing more than the common-law contributory negligence. Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 173 N.W.2d 196 (1970).

101.11 Annotation When an apartment complex was managed for a fee by a management company, the company was carrying on a business there. Reduction of rent to one of the tenants for caretaking services constituted employment on the premises. A tenant who fell on the icy parking lot after the caretaker knew of the condition need only prove negligence in maintaining the premises. Wittka v. Hartnell, 46 Wis. 2d 374, 175 N.W.2d 248 (1970).

101.11 Annotation A public sidewalk is not made a place of employment merely because an employer constructed it and kept it free of ice and snow. Petroski v. Eaton Yale & Towne, Inc., 47 Wis. 2d 617, 178 N.W.2d 53 (1970).

101.11 Annotation The fact that a violation of the safe place statute is found puts the burden on the owner to rebut the presumption of causation but does not establish as a matter of law that the defendant’s negligence was greater than the plaintiff’s. Frederick v. Hotel Investments, Inc., 48 Wis. 2d 429, 180 N.W.2d 562 (1970).

101.11 Annotation A store must be held to have had constructive notice of a dangerous condition when it displayed shaving cream in spray cans on a counter and a 70-year old woman fell in cream sprayed on the white floor. Steinhorst v. H.C. Prange Co., 48 Wis. 2d 679, 180 N.W.2d 525 (1970).

101.11 Annotation The mere existence of a step up into a hospital lavatory was not an unsafe condition. Prelipp v. Wausau Memorial Hospital, 50 Wis. 2d 27, 183 N.W.2d 24 (1971).

101.11 Annotation Failure to light a parking lot can support a safe place action, but the evidence must show how long the light was burned out to constitute constructive notice. Low v. Siewert, 54 Wis. 2d 251, 195 N.W.2d 451 (1972).

101.11 Annotation A parking lot owned by a city that is a continuation of a store parking lot used by the public for attending the city zoo and the store, even though maintained by the private property owner, is not a place of employment. Gordon v. Schultz Savo Stores, Inc., 54 Wis. 2d 692, 196 N.W.2d 633 (1972).

101.11 Annotation Detailed construction specifications and the presence of engineers to insure compliance did not manifest control over the project so as to make the defendant liable. Berger v. Metropolitan Sewerage Commission, 56 Wis. 2d 741, 203 N.W.2d 87 (1973).

101.11 Annotation In a safe place action the employee’s contributory negligence is less when the employee’s act or omission has been committed in the performance of job duties. McCrossen v. Nekoosa-Edwards Paper Co., 59 Wis. 2d 245, 208 N.W.2d 148 (1973).

101.11 Annotation A pier at a beach open to the public for a fee constitutes a place of employment. Any distinction between licensees and invitees is irrelevant, and the statute imposes a higher duty as to safety than the common law. Gould v. Allstar Insurance Co., 59 Wis. 2d 355, 208 N.W.2d 388 (1973).

101.11 Annotation A private road on the grounds of a private racetrack that connected the track and a parking lot was subject to this section as to frequenters. Gross v. Denow, 61 Wis. 2d 40, 212 N.W.2d 2 (1973).

101.11 Annotation A one-eighth-inch variance in elevation between the sides of a ramp joint was too slight, as a matter of law, to constitute a violation of the safe place statute. Balas v. St. Sebastian’s Congregation, 66 Wis. 2d 421, 225 N.W.2d 428 (1975).

101.11 Annotation An employer may be held liable under the safe place statute not only for failing to construct or maintain safety structures such as fences, but also for knowingly permitting employees or frequenters to venture into a dangerous area. Kaiser v. Cook, 67 Wis. 2d 460, 227 N.W.2d 50 (1975).

101.11 Annotation The safe place statute applies only to unsafe physical conditions, not to activities conducted on a premises. Korenak v. Curative Workshop Adult Rehabilitation Center, 71 Wis. 2d 77, 237 N.W.2d 43 (1976).

101.11 Annotation The duty to furnish a safe place of employment to employees does not impose a duty on a contractor for a subcontractor’s employees. A contractor can owe a duty to a frequenter, but only when a hazardous condition is under the supervision or control of the contractor. Barth v. Downey Co., 71 Wis. 2d 775, 239 N.W.2d 92 (1976).

101.11 Annotation Retention of control and supervision is required for recovery against a general contractor by a subcontractor’s employee. Lemacher v. Circle Construction Co., 72 Wis. 2d 245, 240 N.W.2d 179 (1976).

101.11 Annotation The length of time a safe place defect must exist, in order to impose constructive notice of it on an owner, varies according to the nature of the business, the nature of the defect, and the public policy involved. May v. Skelley Oil Co., 83 Wis. 2d 30, 264 N.W.2d 574 (1978).

101.11 Annotation In safe place cases, comparative negligence instructions need not direct the jury to consider the defendant’s higher duty of care. Brons v. Bischoff, 89 Wis. 2d 80, 277 N.W.2d 854 (1979).

101.11 Annotation Indemnity in a safe place action creates an effect identical to that of contribution. Barrons v. J.H. Findorff & Sons, Inc., 89 Wis. 2d 444, 278 N.W.2d 827 (1979).

101.11 Annotation A non-negligent indemnitor was liable to an indemnitee whose breach of a safe place duty was solely responsible for damages under the circumstances of the case. Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 284 N.W.2d 692 (Ct. App. 1979).

101.11 Annotation Affirmed. 100 Wis. 2d 120, 301 N.W.2d 201 (1981).

101.11 Annotation Architects have liability under the safe place statute only if they have a right of supervision and control, which must be determined from the agreement between the owner and the architect. If the duty exists, it is nondelagable. Hortman v. Becker Construction Co., 92 Wis. 2d 210, 284 N.W.2d 621 (1979).

101.11 Annotation Evidence of a prior accident was admissible to prove notice of an unsafe condition. Callan v. Peters Construction Co., 94 Wis. 2d 225, 288 N.W.2d 146 (Ct. App. 1979).

101.11 Annotation Distinguishing “safe employment” and “safe place of employment.” There is a duty to provide safe employment to employees that does not extend to frequenters, while the duty to provide a safe place of employment does extend to frequenters. Leitner v. Milwaukee County, 94 Wis. 2d 186, 287 N.W.2d 803 (1980).

101.11 Annotation That a lease allocates safe place duties between an owner and an employer/tenant does not nullify mutually shared statutory duties. Hannebaum v. Direnzo & Bomier, 162 Wis. 2d 488, 469 N.W.2d 900 (Ct. App. 1991).

101.11 Annotation The safe place duty to keep a swimming pool in a condition to protect customers from injury was overcome when a person unreasonably dove into a pool of unknown depth. Wisnicky v. Fox Hills Inn & Country Club, Inc., 163 Wis. 2d 1023, 473 N.W.2d 523 (Ct. App. 1991).

101.11 Annotation A county house of correction is subject to the safe place statute. Henderson v. Milwaukee County, 198 Wis. 2d 747, 543 N.W.2d 544 (Ct. App. 1995).

101.11 Annotation An alarm system does not relate to the structure of a building and therefore does not relate to a safe place of employment. It is a safety device that is the responsibility of the employer and not the building owner. Naaj v. Aetna Insurance Co., 218 Wis. 2d 121, 579 N.W.2d 815 (Ct. App. 1998), 96-3640.