Chapter 4167-5 Abatement; Undue Hardship

4167-5-01 Abatement dates.

(A) In establishing the time limits in which a public employer must abate a violation under this chapter, the superintendent shall consider the following:

(1) The costs to the employer;

(2) The size and financial resources of the employer;

(3) The severity of the violation;

(4) The technological feasibility of the employer's ability to comply with requirements of the citation;

(5) The possible present and future detriment to the health and safety of any public employee for failure of the employer to comply with requirements of the citation; and

(6) Other factors as the superintendent determines appropriate.

(B) After considering the factors in paragraph (A) of this rule, the superintendent shall fix the abatement period to be the shortest interval within which the employer can reasonably be expected to correct the violation, but not more than two years. The abatement date shall be set forth in the citation as a specific date, not a number of days.

(C) Where the superintendent determines it is appropriate, the superintendent may grant a one year extension to the abatement period.

Effective: 01/01/2014
R.C. 119.032 review dates: 10/09/2013 and 11/01/2018
Promulgated Under: 119.03
Statutory Authority: 4121.12 , 4121.121 , 4167.02
Rule Amplifies: 4167.10
Prior Effective Dates: 7/1/94; 11/15/96; 8/15/01

4167-5-02 Undue hardship.

(A) In the event that a rule or order issued by the superintendent would cause undue hardship upon a public employer, the employer may request an exclusion from such a rule or order .

(B) The superintendent shall not grant any undue hardship exclusion request that is:

(1) Requesting exclusion from an order issued in conjunction with a finding of imminent danger under rule 4167-8-02 of the Administrative Code.

(2) Made on behalf of a group of public employers.

(C) An exclusion request on the basis of an undue hardship may be granted by the superintendent when a rule or order issued under this chapter would require a public employer to take action with significant difficulty or expense when considered in light of, but not limited to, all of the following factors:

(1) The nature and cost of the action required by a rule or an order issued under this chapter;

(2) The overall financial resources of the public employer;

(3) The number of persons employed by the public employer at the particular location where the action may be required;

(4) The effect on expenses and resources or the impact otherwise of the action required upon the operations of the public employer at the location where the action may be required;

(5) The overall size of the public employer with respect to the number of its public employees;

(6) The number, type, and location of the public employer's operations, including the composition, structure, and functions of the work force of the public employer;

(7) The geographic separateness, administrative, or fiscal relationship of the public employer's operations to the whole public employer.

(D) A public employer's undue hardship exclusion request must be in writing and include the following information:

(1) The name and address of the public employer and the name, title, and telephone number of a contact person for the employer in regard to the exclusion request;

(2) The address of the place or places of employment involved;

(3) A clear and specific statement as to the order, standard or regulation for which the exclusion is requested;

(4) A statement that the exclusion does not involve an order, regulation or action which is required to prevent imminent danger or death or serious harm to a public employee;

(5) A statement by the public employer supported by statements from qualified persons with firsthand knowledge of facts represented, that the public employer is unable to comply with the order, standard, or regulation due to an undue hardship for the factors outlined in paragraph (C) of this rule;

(6) A statement of the steps the public employer has taken and will take,with specific dates, to protect its public employees or others who may be affected;

(7) A certification that the public employer has informed its employees of the undue hardship exclusion request by taking one or more of the following steps:

(a) Giving a copy of the undue hardship exclusion request to the public employee representatives, if any;

(b) Posting at a location or locations where public notices to employees are normally posted, a summary of the undue hardhsip exclusion request, such a summary shall include the means by which a complete copy of the undue hardship exclusion request may be examined .

The certification required under this paragraph must contain a description of how employees have been notified of the undue hardship exclusion request.

(E) Upon receipt and review of an undue hardship exclusion request, the public employer must provide the superintendent any additional information required to make a decision on the request.

(F) An undue hardship exclusion will be granted only if the superintendent finds, upon weighing the factors of paragraph (C) of this rule, such exclusion is appropriate and the requirements of paragraph (D) of this rule are met.

(G) If one or more of the factors that resulted in the initial granting of the exclusion change, the superintendent shall review the changed circumstances to determine if the undue hardship exclusion shall remain in effect.

Effective: 01/01/2014
R.C. 119.032 review dates: 10/09/2013 and 11/01/2018
Promulgated Under: 119.03
Statutory Authority: 4121.12 , 4121.121 , 4167.02
Rule Amplifies: 4167.01
Prior Effective Dates: 7/1/94; 11/15/96; 8/1/01

4167-5-03 Petition for a modification of abatement date.

(A) An employer may file a petition for modification of abatement date when the employer has made a good faith effort to comply with the abatement requirements of a citation, but such abatement has not been completed because of factors beyond the employer's control.

(B) A petition for modification of abatement date shall be in writing and shall include the following information:

(1) All steps taken by the employer, and the dates of such action, in an effort to achieve compliance during the prescribed abatement period.

(2) The specific additional abatement time necessary in order to achieve compliance.

(3) The reasons such additional time is necessary, including the unavailability of professional or technical personnel or of materials and equipment, or because necessary construction or alteration of facilities cannot be completed by the original abatement date.

(4) All available interim steps being taken to safeguard the employees against the cited hazard during the abatement period.

(5) A verification that a copy of the petition has been posted, and if appropriate, served on the authorized representative of affected employees, in accordance with paragraph (C)(1) of this rule and a verification of the date upon which such posting and service was made.

(C) A petition for modification of abatement date shall be filed with the superintendent no later than the close of the next working day following the date on which abatement was originally required. A later-filed petition shall be accompanied by the employer's statement of exceptional circumstances explaining the delay.

(1) A copy of such petition shall be posted in a conspicuous place where all affected employees shall have notice thereof or near such location where the violation occurred. The petition shall remain posted for a period of fourteen calendar days. Where affected employees are represented by an authorized representative, said representative shall be served with a copy of such petition.

(2) Affected employees or their representatives may file an objection in writing to such petition with the superintendent. Failure to file such objection within fourteen calendar days of the date of posting of such petition or of service upon an authorized representative shall waive any further right to object to said petition.

(3) The superintendent shall have the authority to approve any petition for modification of abatement date filed pursuant to the rule.

(4) The superintendent shall not exercise approval power until the expiration of fourteen calendar days from the date the employer posted the petition or served the petition upon an authorized representative pursuant to paragraphs (C)(1) and (C)(2) of this rule .

(D) When any petition is objected to by the superintendent or affected employees, the petition, citation, and any objections shall be forwarded to a hearing officer within three working days after the expiration of the fourteen calendar day period set out in paragraph (C)(4) of this rule.

(E) Hearings and appeals will be conducted in accordance with rule 4167-14-02 of the Administrative Code.

Effective: 01/01/2014
R.C. 119.032 review dates: 10/09/2013 and 11/01/2018
Promulgated Under: 119.03
Statutory Authority: 4121.12 , 4121.121 , 4167.02
Rule Amplifies: 4167.10
Prior Effective Dates: 5/22/95; 11/15/96; 8/1/01