Employers are reminded of a difficult lesson by a recent administrative law judge decision on “excusable neglect.” Secretary v. Progressive Interest, Inc., OSHRC No. 12-1805.
According to the administrative law judge the citation in this matter was issued to the company on July 30, 2012, received by certified mail, and signed for by an employee, on August 2, 2012. So the deadline to file the Notice of Contest was August 23, 2012. The company had no guidelines for employees handling the mail, including certified mail, during this period, except that employees were to put the mail on the account manager’s desk unopened. Unfortunately, the account manager was out of the country for 30 days and returned back to the office on August 21, 2012, which was two days before the deadline to file the Notice of Contest.
Then the account manager did not sort and go through the mail right away. But more, neither did the company communicate with OSHA at all before filing the written “Late Notice of Contest” on August 27, 2012, 6 days too late. The ALJ found that a “timely filing of Notice of Contest could have occurred had Respondent in place satisfactory internal mail handling procedures.”
If you have recently had government agency inspectors at your facility, it is important to watch for and respond to subsequent correspondences from them in a timely manner. If you find that you cannot meet the agency imposed response deadline, then reach out at once and communicate with the agency representatives seeking a time extension for your response. Such extensions are not always possible — but not doing so will only result in an outcome you do not want. The citation will be upheld against the company.