11th Cir. Deals a Big Blow to OSHA’s Inspection Authority

By Eric J. Conn and Lindsay A. DiSalvo

OSHA’s enforcement authority, specifically as it relates to the agency’s ability to expand an unprogrammed inspection beyond its original scope, has been limited, at least for employers in the Southeast.  Late last year, in United States v. Mar-Jac Poultry, Inc., the U.S. Court of Appeals for the 11th Circuit affirmed a district court decision to quash an administrative inspection warrant that would have permitted OSHA to expand an inspection of Mar-Jac Poultry, Inc.’s (“Mar-Jac”) poultry processing facility in Georgia, initiated as a partial scope inspection in response to a single, specific reported injury, to become a comprehensive inspection under a Regional Emphasis Enforcement Program. This decision is important for employers because OSHA’s inspection authority has generally been understood to be quite broad, and judges have generally deferred to OSHA when applying the applicable administrative probable cause standard to OSHA’s inspection authority.  But in Mar-Jac, the 11th Circuit determined that an unprogrammed inspection initiated as a result of a specific reported injury could not lawfully be expanded to include other areas of the facility, other hazards unrelated to the specific reported injury, and other aspects of Mar-Jac’s safety program, because the evidence presented by OSHA in support of its warrant application was inadequate to establish reasonable suspicion of the presence of violative conditions unrelated to the reported injury.

Background of the Case

OSHA decided to inspect Mar-Jac’s poultry processing facility in Georgia after the facility called OSHA to report a serious injury that resulted in an in-patient hospitalization on February 4. 2016.  The injury occurred on February 3rd, when an employee attempted to repair an electrical panel with a non-insulated screwdriver, resulting in an arc flash and serious burns to the employee.  After receiving the injury report, OSHA opened an unprogrammed inspection at the facility on February 8th.  At that time, OSHA asked the employer for consent to inspect both Continue reading

To Demand an OSHA Inspection Warrant or Not – That is the Question

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 Warrant Imageworkplace 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 proper Continue reading