I sometimes think that lawyers should be awarded points for creativity, even when their legal arguments fail to persuade judges. A good example of this is a recent decision from the Seventh Circuit Court of Appeals affirming the finality of workplace safety citations issued by the Occupational Safety and Health Administration. In Chavez-DeRemer v. Miller, OSHA issued the employer citations for fall protection violations. Under the OSH Act, citations must be served by certified mail. Once served, the employer has 15 business days to contest the citations before they become final.

In this case, the addressee twice refused the certified mail delivery. OSHA then sent the citations via UPS, and received a tracking notice indicating delivery. The employer failed to file a timely contest of the citations but later responded to OSHA’s attempt to enforce the penalties by claiming that the citations had never been properly served. The employer claimed that OSHA failed to meet the statutory requirement of service by certified mail and that the address used by OSHA to mail the citations was not the business’s actual location.

The Seventh Circuit had little difficulty disposing of both arguments. The court noted that in circumstances where an addressee refuses delivery, the party seeking to serve the documents can use alternative means. In this case, the certified mail was refused and was not undeliverable, and the UPS receipt showed effective receipt of the citations. Second, the address used by OSHA was owned by the employer, was associated with the business, and had been used in the past for official correspondence.

The court concluded that the employer in this case had received due process because it had reasonable notice of the citations. Unlike many forms of legal service, OSHA citations contain a short and hard deadline for responding. Even if the employer receives a courtesy email copy of citations from the agency, it should closely monitor certified mail service and determine its response well before the 15-working-day deadline passes.

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