United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

|                                                                                                        |                          |
|--------------------------------------------------------------------------------------------------------|--------------------------|
| SECRETARY OF LABOR,

Complainant,

v.

ARIANA MURRELL-ROSARIO d/b/a/ LIBERTY TAX SERVICE,

Respondent. | OSHRC Docket No. 21-0432 |

BRIEFING NOTICE

The parties are requested tobrief the following issueswith respect to Citation 1, Item 1:

(1)Whetherthe judge erred in concluding thatthe alleged violationof the general duty clause,29 U.S.C. § 654(a)(1), was not preempted by29 C.F.R. § 1910.134. In addressing this issue, the parties should discussthe applicability of § 1910.134(a)(1)andwhetherunder that provision,COVID-19 is an “occupationaldisease[] caused by breathing air contaminated with harmful dust, fogs, fumes, mists, gases, smokes, sprays, or vapors . . . .”

(2)Whetherthe judge erred inaffirmingtheallegedgeneral duty clauseviolationand characterizing it as willful. Specifically, the parties shouldaddress:

a.Whether theSecretary establishedthe existence of a hazard. In addressing this issue, the parties should discusswhetherthe record shows thatthe alleged hazard “arise[s] out of (that is, [has] a sufficient nexus with)the work at issue.”Integra Health Mgmt., Inc.,2019 WL 1142920, at *6 (No. 13-1124, 2019).

b.Whether theSecretaryestablishedthatthe alleged hazard was“recognized as such by the employeror by general understanding in the employer’s industry.” RoadsafeTraffic Sys., Inc., 2021 WL 5994023, at *4 (No. 18-0758, 2021)(internal quotation marks and brackets omitted).

c.Whether theSecretaryestablishedthe feasibility and effectiveness oftheproposed abatementmeasures.In addressing this issue, the parties shouldfirstdiscusswhether the record shows thatRespondent’s existing measuresto address the alleged hazard were inadequate. Id.at *6 (“Where an employer hasexisting safety procedures, the burden is on the Secretary to show that those procedures are inadequate.” (internalquotation marks omitted)). 

d.Whether the Secretary establishedthatthealleged violation waswillful.

The parties are advised that whenacase is directedfor review to consider eitherthe merits or characterization of an item,the appropriateness of the penalty is also subject to review. Accordingly, the parties may address the amount of the penalty if they so choose.

All briefs are to be filed in accordance with Commission Rule 93.1 The first brief is to be filed within 40 days of this notice. A party not intending to file a brief shall notify the Commission inaccordance with Commission Rule 93. The time for filingany responsivebriefs(orlettersfiled in lieu of briefs)shall commence on the date of service.

BY DIRECTION OF THE COMMISSION

Dated:July 13, 2022/s/

John X. Cerveny

Executive Secretary

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1 The Commission requests that all briefs include an alphabetical table of authorities with references to the pages on which they are cited, and that an asterisk be placed in the left-hand margin of the table to indicate those authorities on which the brief principally relies. The Commission also requests that copies of cited authority, other than statutes,regulations,case law, law journal articles,and legal treatises, be provided to the Commission and to the opposing party. Parties should be cautioned that these materials will be considered only if appropriate.