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What Types of MIOSHA Hearings Does MOAHR Hold?
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..."
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.
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.