Chapter 3.3. Occupational Safety and Health Appeals Board

Article 1.5. Service of Documents and Duty to Notify Others of Appeal and Hearing

§362. Stay of Abatement Period and Abatement Changes.

(a) Unless otherwise provided by statute, abatement periods and changes required by the Division are stayed upon the filing of a docketed appeal with the Appeals Board and remain stayed until withdrawal of the appeal or a final disposition of the proceeding by the Appeals Board. Except as provided in subdivision (b), the filing of a petition for reconsideration suspends for a period of 10 days the order or decision affected, insofar as it applies to the parties to the petition, unless otherwise ordered by the Appeals Board. Except as provided in subdivision (b), the Appeals Board, upon the terms and conditions which it by order directs, may stay, suspend, or postpone the order or decision during the pendency of the reconsideration. Pending reconsideration, the Board shall not order an employer to abate a citation which has been dismissed or vacated by Order or Decision of an Administrative Law Judge.

(b) In appeals involving a citation classified as serious, repeat serious, or willful serious, the filing or pendency of a petition for reconsideration of a final order or decision shall not stay or suspend the requirement to abate the hazards affirmed by the decision or order, unless a petition to stay or suspend meeting the following conditions in (1) through (4) is filed:

(1) The employer must request a stay or suspension of abatement by filing a written, verified petition to stay or suspend within 10 days after the issuance of the decision or order of an Administrative Law Judge;

(2) The petition shall be served on all parties who have been joined in the proceeding at the time of filing. A petition to stay or suspend abatement that meets all requirements of these regulations and the Labor Code shall be deemed filed on the date received by the Appeals Board;

(3) The employer's written petition is accompanied by supporting declarations that set forth evidence demonstrating by a preponderance of the evidence that a stay or suspension of abatement will not adversely affect the health and safety of employees;

(4) A petition to stay or suspend abatement that lacks a proper verification or is not accompanied by a proof of service shall be considered filed in accordance with subparagraph (1) if the petitioner files the required verification or proof of service within five days of the date of service of a letter from the Appeals Board noting the omission(s);

(5) Failure to perfect a petition to stay or suspend abatement in accordance with subsection (4) shall result in the dismissal of the petition.

(6) An opposing party may file an answer to the petition to stay or suspend abatement no later than 7 days from the service of the petition.

(7) The Board shall issue an order or decision granting the petition to stay or suspend abatement within 30 days of filing. Should the Board fail to act within 30 days, the petition shall be deemed denied.

(c) Staying of order or decision under appeal: proper and timely filing of a petition to stay or suspend abatement with the Board shall temporarily stay abatement during the pendency of the Board's review of the petition to stay or suspend abatement.

Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 6603 and 6625, Labor Code.

HISTORY

1. Renumbering and amendment of former section 360 to section 362 filed 10-30-92; operative 11-30-92 (Register 92, No. 44).

2. Amendment of section and Note filed 5-18-2016; operative 7-1-2016 (Register 2016, No. 21).