Gary Visscher, Esq.
Commission Split Means Flexibility to Statute of Limitations
The Bible’s Old Testament tells the story of a time when the sun stood still and a day lasted two days, in order for the Israelites to prevail in battle. In a case recently before the Occupational Safety and Health Review Commission, OSHA found another way for a day to last more than 24 hours, in order to avoid dismissal of a citation.
OSHA is required to issue a citation within 6 months of the occurrence of a violation. Section 9 (c) of the OSH Act states that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” The six months to issue the citation is a statute of limitations on OSHA’s authority to issue the citation.
Employers who receive a citation should always check the dates on the citation and on the certified mail receipt, to assure that in fact OSHA sent the citation within six months of the date of the alleged violation. OSHA area offices not infrequently wait right up to the deadline before issuing a citation. Sometimes events or confusion about dates causes OSHA to miss the deadline.
In the case before the Review Commission, R+L Carriers (June 1, 2022), OSHA issued a citation to the employer on December 8, 2021. The six-month statute of limitations thus extended back to violations which occurred on June 8, 2021. However, according to the citation, the alleged violation (of 1910.178(p)(1)) occurred “on or about June 7, 2021.” OSHA missed the deadline.
OSHA nonetheless issued the citation. The company timely contested, and OSHA subsequently filed a complaint with the Commission. With the complaint, the attorney for the Secretary, obviously noticing the statute of limitations problem with the citation as issued, included an amended citation which alleged that the violation occurred “on or about June 8, 2021.”
One would have expected that the Commission would make quick work of dismissing the case because the citation as issued was outside of the time allowed by the statute of limitations. Surprisingly that was not the case. The company filed a motion to dismiss the citation, but the administrative law judge dismissed the motion without explanation. The company then petitioned the Commission for interlocutory review. The two-member Commission split on whether to grant the petition, and the effect of the split was that the petition was denied. Thus, the case goes back to the ALJ for further proceedings, including a hearing on the citation.
In justifying her vote to deny R+L Carrier’s petition, Chairman Attwood asserts that the citation’s allegation that the violation occurred “on or about June 7, 2021” meant that it occurred “approximately” on June 7 and that could include June 8, 2021. Therefore, the citation was timely. As dissenting commissioner Laihow wrote, “[o]ne day here, three weeks the next – at what point does this sort of ‘deadline creep’ violate the statute?”
The two commissioners did agree on one point, that in order to prove a violation occurred, OSHA will have to rely on evidence of violative conduct which occurred within the six-month statute of limitations. If OSHA’s on-site inspection concluded prior to June 8, it may be difficult for OSHA to prove the violation.