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Citation Appeals
Section 29 of MIOSHA, MCL 408.1029, provides that MIOSHA representatives (safety officers or hygienists) may inspect public and private places of employment at reasonable times and without delay. If, based on the inspection, the safety officer believes that violations of the promulgated rules or Act 154 have occurred, citations may be issued to the inspected employer. Every citation has three parts – the allegation of violation containing a description of the violation and reference to the rule or section of the Act alleged to have been violated, a time period for correction of the alleged violation, and a proposed penalty.
Petitions to Modify Abatements (PMAs)
If an employer allows a citation to become final by not filing a petition or appeal, but still needs more time to correct a specific violation, the employer may file a PMA with the issuing division.
Variances
Section 27 of MIOSHA allows an employer to suggest a method of abatement that is different from what the promulgated rules provide. If the division is convinced that the employer’s suggested method of protecting employees will provide protection as safe as that required by the applicable rule, the division may grant the employer a variance from the rule.
Discrimination
Section 65 of MIOSHA prevents an employer from discriminating against an employee who exercises rights permitted by the Act. An employee who believes he or she has been discharged, disciplined, or otherwise discriminated for exercising rights permitted by MIOSHA may file a complaint with MIOSHA. After an investigation, MIOSHA issues a decision that may be appealed within 15 working days to MOAHR by either the employer or employer. The burden of proof is on the employee to show that the employer violated Section 65 by discriminating against the employee for the exercise of rights permitted by the Act.
Citation Appeals
Section 41 established a two-step appeal process. An employer or employee representative has 15 working days from receipt of a citation to file a petition for dismissal. The employer may object to the violation alleged, the proposed penalty, or request more time for abatement. The employee representative may only object to the length of the abatement period.
Upon receipt of a petition, MIOSHA has 15 working days to issue a decision. Upon receipt of this decision, the employer and employee representative each have 15 working days to appeal to the Board. Upon receipt of an appeal, the Board schedules the matter for a prehearing conference. If the case cannot be resolved, the appeal is referred to MOAHR as a contested case.
The burden of proof in a citation appeal case is on MIOSHA to show beyond a preponderance of evidence that the employer was in violation of the cited rule. MIOSHA generally starts off with the safety officer, but may call employees of the cited employer and expert witnesses. The employer and employee group, if any, may cross-examine each division witness. The ALJ may also have questions of the witnesses.
The employer has the burden of proof to establish by a preponderance of the evidence any recognized affirmative defenses such as greater hazard, isolated incident, or impossibility of performance.
Petitions to Modify Abatements (PMAs)
If an employer allows a citation to become final by not filing a petition or appeal, but still needs more time to correct a specific violation, the employer may file a PMA with the issuing division. This procedure is addressed in Section 44(2) of MIOSHA and in Administrative Rules R. 792.11107, et seq. If MIOSHA agrees with the requested time extension, MIOSHA issues an order extending the abatement date. If the request if denied, the employer may appeal to the Board. As with citation appeals, the Board sets the matter for a prehearing conference. If the case continues to be disputed, the appeal is referred to MOAHR as a contested case.
In order to prevail in a PMA, the employer has the burden to show a good faith effort to meet the time period established by MIOSHA, but not withstanding this effort, “abatement has not been completed because of circumstances beyond the reasonable control of the employer..."
Variances
If the application for variance is denied, the employer may file an appeal. In this event the matter is forwarded to MOAHR as a contested case. Administrative Rules R 792.11116, et seq. have been promulgated for this subject. The burden of proof is on the employer to show that the offered method of abatement will provide employees with protection as safe as that required by the applicable rule.
Discrimination
At the hearing, the ALJ issues a decision in favor of, or against the Petitioner, based on the evidence created in the record. The Division is a party at the hearing. If the ALJ finds a violation of Section 65, the ALJ must order all appropriate relief, including rehiring with back pay. The ALJ may also order the employer to pay attorney fees, hearing costs, and transcript costs.
Citation Appeals
The Administrative Law Judge (ALJ) prepares a proposed decision for review by the Michigan Board of Health and Safety Compliance and Appeals (Board). The Board then issues its final decision on the case. Decisions from the Board are appealable to the circuit court.
Petitions to Modify Abatements (PMAs)
PMA cases may be appealed to the Board. After the ALJ issues a proposed decision, the Board members have 30 days to “direct review.” Any one member may exercise this authority. If no Board member directs review within the 30 day period, the ALJ’s decision becomes the final decision of the Board and may be appealed to circuit court. During the first 20 days of the 30-day review period, the parties may file exceptions to the ALJ’s decision. However, even if exceptions are filed, the Board does not review the case unless a member directs review. See, Administrative Rule R. 792.1115.
Variances
In the variance area, the ALJ prepares a proposed decision for the Department Director. The Department Director issues the final decision in the matter.
Discrimination
The ALJ prepares a final agency decision. Appeals from the Board, Department Director, and the ALJ are to the circuit court.
