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 proper Continue reading →