In 2018 and the early part of 2019, there has been a flurry of interesting decisions from the Occupational Safety and Health Review Commission (“Commission”). The decisions have ranged from a case clarifying Secretary of Labor’s burden for a repeat citation to two decisions on the general duty clause, one sustaining a citation involving workplace violence and one reversing a citation on heat stress. Several of these decisions have given employers reason to rejoice. But with Commissioner Cynthia Atwood’s term ending at the end of April 2019 and Chairwoman Heather MacDougal’s announcement that she would be leaving the Commission, the Commission is now down to just one member, Commissioner James Sullivan, Jr.
So, what does this mean for cases being heard in front of the Commission? Well, in short, it means that written decisions from the Commission’s three-member review panel will come to a stop. The Occupational Safety and Health Act requires that the Commission have a quorum of at least two members to issue final decisions. Commissioner Sullivan can still designate cases for review but no action can be taken on pending cases without a quorum.
While the lack of a quorum at the Commission will mean a standstill for final Commission decisions, it does not mean that employers can just let citations they receive sit. Employers must still issue notices of contest to citations they wish to challenge within 15 business days of receipt. The matter will still be heard by an Administrative Law Judge (“ALJ”) in its normal course. The only effect the lack of a quorum will have on employers is if they decide to appeal an adverse decision issued by an ALJ. In that case, employers should be prepared to wait or, if the ALJ decision is not designated for review, the employer can appeal the decision straight to federal court.