(A) In the event that a rule or order
issued by the superintendent would cause undue hardship upon a public employer,
the public employer may request an exclusion from such a rule or
order.
(B) The superintendent will 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; or
(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 act with
significant difficulty or expense when considered in light of, but not limited
to, 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 ordered upon the
operations of the public employer at the location where the action is
ordered;
(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;
and
(7) The geographic
separateness, administrative relationship, 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;
(2) The name, title, and
telephone number of a contact person for the public employer in regard to the
undue hardship exclusion request;
(3) The address of the place or places of
employment involved with the undue hardship exclusion request;
(4) A clear and specific statement as to
the order, standard, or regulation for which the undue hardship exclusion is
requested;
(5) A statement that the undue hardship
exclusion request does not involve an order, regulation or action which is
required to prevent imminent danger or death or serious harm to a public
employee;
(6) 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;
(7) A statement of the steps the public
employer has taken and will take, with specific dates, to comply with the
order, standard, or regulation for which the undue hardship exclusion is
requested; and
(8) A certification that the public
employer has informed its public employees of the undue hardship exclusion
request, with a description of how its public employees have been notified of
the undue hardship exclusion request, by taking one or more of the following
steps:
(a) Providing a copy of the undue hardship exclusion request to
the public employee representatives, if any; or
(b) Posting at a location or locations where notices to public
employees are normally posted, a summary of the undue hardship exclusion
request, and the summary shall include the means by which a complete copy of
the undue hardship exclusion request may be examined.
(E) The superintendent may request any
additional information from a public employer that is required to make a
decision on an undue hardship exclusion 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 undue hardship exclusion is appropriate and
the requirements of paragraph (D) of this rule are met.
(G) If one or more of the factors have
changed since the initial grant of the undue hardship exclusion, the
superintendent will review the changed circumstances to determine if the undue
hardship exclusion will remain in effect.
