By Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice
Perhaps the most common question I am asked about OSHA inspections is:
When does it make sense (if ever) for an employer to demand an administrative warrant before permitting an OSHA compliance officer to proceed with a safety and health inspection?
First, it is important to understand that the Fourth Am. of the U.S. Constitution does protect employers from unreasonable searches and seizures in the workplace just as it protects us all from such searches in our homes and vehicles. That means that without the employer’s consent, OSHA may not proceed with an inspection at the workplace without an administrative inspection warrant (or the presence of an imminent hazard).
However, as an administrative warrant, the standard that applies to OSHA’s application for a warrant is much lower than when the police request a warrant to inspect your home. Rather than demonstrating to the court criminal probable cause, OSHA need only show that there is administrative probable cause that a violative condition will be found in your workplace. On top of the lower burden that OSHA must show, the Agency gets a pretty health dose of deference from the Courts. All of that is to say, successfully challenging a warrant is steep uphill battle. That is not to say, however, that there are not good reasons to demand an inspection warrant.
We generally recommend that employers consent to OSHA inspections, but only after negotiating a reasonable scope to the inspection. Although the notion that OSHA will be denied a warrant or that an employer will successfully quash a warrant is usually a long shot, the threat of demanding or challenging a warrant does still give employers some leverage at the start of an OSHA inspection to negotiate with the compliance officer or the Area Office about the properscope of the inspection (i.e., to keep the inspection limited to the subject of an employee complaint, the location/equipment involved in an incident, or the topics covered by a Special Emphasis Program that triggered the inspection). If OSHA will not agree to limit the scope to the triggering event, then demanding and challenging a warrant may be appropriate, because the triggering event is most likely the sole basis for OSHA’s assertion of probable clause.
Another circumstance where demanding (or at least threatening to demand) a warrant may be appropriate is if OSHA is not willing to wait a reasonable amount of time for the employer’s chosen inspection representative to be present at the worksite to participate in the inspection. Many of our clients have designated their companies’ Corporate Safety Director, Director of Operations, or us (as their outside OSHA Counsel) as the only acceptable inspection representative for the company. For employers with multiple locations around the country, it may not be feasible for the designated inspection representative to arrive within an hour or two at the location where an unannounced OSHA inspection is set to begin. We will often ask OSHA to wait to start the inspection until much later in the day when the company’s designated inspection representative can arrive, or even to come back the next day when the representative is able to travel from out of town to get to the site. This often triggers a kerfuffle, but with the threat of demanding a warrant, and offering other practical solutions (e.g., allowing the compliance officer to begin reviewing relevant records until the representative arrives), an agreeable arrangement short of demanding a warrant can usually be found. If not, demanding the warrant will ensure the inspection does not begin before your representative has ample time to arrive.
At the end of the day, regardless of the interest in demanding a warrant, there is a balancing test employers need to apply when making that decision. There is a very real risk of retaliation by OSHA for demanding a warrant, but sometimes that risk outweighs the harm that could be done by allowing an inspection to proceed without delay, without limits, and without your chosen inspection representative.
For more tips about preparing for and managing OSHA inspections, check out the OSHA Inspection Toolkit, prepared by Conn Maciel Carey’s national OSHA Practice Group to help our clients and friends navigate through the OSHA inspection maze. Likewise, here is a link to a recording of a webinar we conducted about “Preparing for and Managing OSHA Inspections” as part of Conn Maciel Carey’s 2015 OSHA Webinar Series.
2 thoughts on “To Demand an OSHA Inspection Warrant or Not – That is the Question”
As a past OSHA Inspector (CSHO) and now (since 2006) a private EH&S Consultant I have and will continue to direct my clients as to when, where and why refusal to allow an OSHA inspector to inspect may arise. Recently I cancelled an OSHA inspection via phone for one of my clients simply by speaking with the CSHO and questioning the reason why for the visit. Years ago (in the early 70s mid 80s) I can recall as a CSHO I would meet my partner for morning coffee (we always worked as a team in those days) and decide where we were going to inspect, this if we did not have a complaint and/or fatality/catastrophe assigned inspection. Back then they were called “Random” inspections. Well as we all know, those were challenged and the decision was made that the Agency must have “probable cause” to inspect a facility. Now that “probable cause” can be applied-identified in a number of “court recognized” manners and are listed in the http://www.osha.gov web site, in order, but it remains – without “probable cause”, the Agency, the CSHO has NO RIGHT TO INSPECT. Every once in a while you will get a CSHO who may show up on an unscheduled inspection (Random) and have no “probable cause”, it is then you as an employer have the right to not allow the inspection. Believe me, if that CSHO is there, on their own, unscheduled, no applicable “probable cause”, and you asked if you can call their Area Office, talk to their Area Director simply to confirm the reason they are there….they’ll leave quickly. Just my 40 years of experience “2 Cents Worth”. Good article, although I did have to look up “kerfuffle”
This is a fantastic article, and thank you for posting it. I am a safety manager for a small (3 person) residential construction company. We had an unwarranted inspection this year. OSHA busted a sub-contractor for not having a dust mask as he cut tile on a truck outside our gated residential project. There was no imminent danger, no accidents in 30 years and he walked in on a class trip and wrote us up for 4 ridiculous infractions. He claimed “probable cause”. We had none of our employees on location. Any comments or recommendations? thanks again for your article here. /Steve