Section 320. Extension of abatement time

A. Where an extension of abatement is sought concerning a final order of the commissioner or of a court, the extension can be granted as an exercise of the enforcement discretion of the commissioner. While the extension is in effect the commissioner will not seek to cite the employer for failure to abate the violation in question. The employer shall carry the burden of proof to show that an extension should be granted.

B. The commissioner will consider a written petition for an extension of abatement time if the petition is mailed to or received by the commissioner prior to the expiration of the established abatement time.

C. A written petition requesting an extension of abatement time shall include the following information:

1. All steps taken by the employer, and the dates such actions were taken, 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, such as 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; and

5. A certification that a copy of the petition has been posted and served on the authorized representative of affected employees, if there is one, in accordance with 16VAC25-60-40, and a certification of the date upon which such posting and service was made.

D. A written petition requesting an extension of abatement which is filed with the commissioner after expiration of the established abatement time will be accepted only if the petition contains an explanation satisfactory to the commissioner as to why the petition could not have been filed in a timely manner.

1. The employer is to notify the commissioner as soon as possible.

2. Notification of the exceptional circumstances which prevents compliance within the original abatement period shall accompany a written petition which includes all information required in subsection C of this section.

E. The commissioner will not make a decision regarding such a petition until the expiration of 15 working days from the date the petition was posted or served.

F. Affected employees, or their representative, may file a written objection to a petition for extension of abatement time. Such objections must be received by the commissioner within 10 working days of the date of posting of the employer's petition. Failure to object within the specified time period shall constitute a waiver of any right to object to the request.

G. When affected employees, or their representatives object to the petition, the commissioner will attempt to resolve the issue in accordance with 16VAC25-60-330. If the matter is not settled or settlement does not appear probable, objections will be heard in the manner set forth in subsection I of this section.

H. The employer or an affected employee may seek review of an adverse decision regarding the petition for extension of abatement to the Commissioner of Labor and Industry within five working days after receipt of the commissioner's decision.

I. An employee's objection not resolved under subsection G of this section or an employer or employee appeal under subsection H of this section will be heard using the procedures of §§ 2.2-4019 and 2.2-4021 of the Code of Virginia. Burden of proof for a hearing under subsection G of this section shall lie with the employer. Burden of proof for an appeal under subsection H of this section shall lie with the party seeking review.

1. All parties shall be advised of the time and place of the hearing by the commissioner.

2. All parties will be advised of the decision within 15 working days of the hearing.

Historical Notes

Derived from VR425-02-95 § 7.2, eff. July 1, 1994; amended, Volume 19, Issue 09, eff. March 1, 2003; Volume 22, Issue 25, eff. September 21, 2006.

Statutory Authority

§§ 40.1-6 and 40.1-22 of the Code of Virginia.