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MIOSHA can’t cite company again pending appeal of original citation

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in Employment Law,Human Resources

Q. Our company has been cited by the Department of Labor for what it considers to be a violation of a Michigan Occupational Safety and Health Act (MIOSHA) safety standard. We are appealing the citation, which we understand could take months or even a year or more to be resolved. Our citation contains an abatement date, but we don’t think we have to make the changes suggested because we still believe there was no violation of the standard. Can MIOSHA cite us again for the same condition because we have not abated the contested safety violation?

A. Because the company has appealed the citation, there has been no final decision that any safety standard has been violated. Thus you are not required to abate an appealed citation, or pay the penalty.

Only if the case goes through the appeal process and you lose are you required to abate the citation. (Of course, if you don’t appeal the citation, it will become a final decision and then your company will have to abate the citation and pay any penalty.) Thus, pending finalization of the appeal, you cannot be cited for a “repeat” or a “failure to abate” a safety violation.

There are instances in which MIOSHA will think that a workplace is so unsafe that something must be done immediately to protect the safety of Michigan workers. In such instances the company will be asked by the safety officer to shut down the operation immediately. These situations are referred to as “imminent danger” citations. The safety officer, however, does not have the authority to compel an employer to shut down an operation. If the employer does not agree to voluntarily comply with MIOSHA’s request, the state attorney general’s office (which provides legal representation to MIOSHA) can go into court and request a judge to require the employer to shut down the operation. Such situations are very rare, and they provide the employer with due process.

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