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Contractor on hook for fine after not responding to fatality citation

Posted On: Nov. 5, 2020 2:20 PM CST


An administrative law judge with the Occupational Safety and Health Review Commission on Thursday denied a home contractor’s request for relief after he failed to respond in time to a $138,118 citation stemming from an inspection of a job site after a fatal fall, calling his failure to “exercise due diligence” “simply negligent.”


An Occupational Safety and Health Administration inspector earlier this year initiated an investigation into a job site in Mobile, Alabama, run by contractor Elmer Julio Perez Mendez after one of his workers in December 2019 fell approximately eight feet from the eave of the roof to the ground and was killed, according to documents in Secretary of Labor v. Elmer Julio Perez Mendez dba Julio Perez, filed in Washington, D.C. 


On June 2, OSHA issued a citation for one willful violation of its fall protection standard, alleging employees engaged in residential construction activities at least six feet from the lower level were not protected by guardrail systems, safety net systems, personal fall arrest systems, or alternative fall protection measures” at the time of the accident “and times prior thereto.” OSHA also issued a grouped other-than-serious citation alleging that Mr. Perez failed to report a work-related fatality within eight hours of the death of an employee resulting from a work related incident, and that Mr. Perez failed to report within 24 hours a work-related incident resulting in the hospitalization of the employee who fell from the roof.


OSHA on June 2 mailed the citation by next-day, certified mail with a return receipt to Mr. Perez’s home. Employers have 15 working days to contest citations and failure to timely file a response “results in the Citation becoming a final order of the Commission by operation of law,” according to documents.


Mr. Perez, who filed a response more than six weeks later on July 15, claimed in part that he was not late in filing a response, as he was traveling by car to California when the citation arrived and the person who signed for it was not an employee, but a “temporary house guest.” He did not return to his residence until June 19.


“Basically Perez argues that because of these circumstances he should not be held responsible for not knowing he had important mail which required timely action in order to protect his interests,” documents state.


The administrative law judge disagreed, writing that “Perez should have had adequate mail handling procedures to ensure important items were received. The Secretary was under no obligation to request signature by a specific person at Perez’s business location. Nor is it the Secretary’s responsibility to identify the person who signed the return receipt.”