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Friday, October 12, 2018

11th Circuit Limits Scope of OSHA Inspections





In the case of United States v. Mar-Jac Poultry, Inc.(link at www.alabamaatwork.com), an employee at Mar-Jac Poultry in Georgia was injured while attempting to repair an electrical panel using a non-insulated screwdriver. Because the employee was hospitalized as a result of the injury, the Company reported the case to OSHA, as it was required to do under § 1904.39. OSHA began the inspection by focusing on the accident, but then the inspectors sought to conduct a wall-to-wall inspection of the entire facility, looking well beyond the reported electrical hazard that had initially prompted the inspection. Mar-Jac consented only to the focused scope of the inspection and provided, among other documents, its OSHA 300 Logs for 2013 through 2015.

Based on the injuries and illnesses recorded on the OSHA 300 Logs, as well as the fact that Mar-Jac was included within the Regional Emphasis Program for Poultry Processing Facilities, OSHA sought and was granted a warrant to inspect the entire facility for a wide range of safety and health issues, including ergonomic, biological, and chemical hazards.  OSHA’s position at the time of this inspection was that if an inspected employer’s business was covered by a Regional Emphasis Program, the Agency was entitled to automatically expand the scope of the initial inspection to conduct a comprehensive wall-to-wall inspection looking at the categories of hazards addressed by the REP, in this case the 16 hazard categories in the Poultry Processing REP. 

Mar-Jac filed an emergency motion in Federal Court to quash the warrant, which request was granted in favor of Mar-Jac. On October 9, the U.S. Court of Appeals for the Eleventh Circuit agreed and found that the Occupational Safety and Health Administration could not expand the scope of an injury-based inspection to a wall-to-wall inspection based on the injuries and illnesses recorded on the employer’s OSHA 300 Logs.

Common Sense Counsel: OSHA cannot conduct an inspection unless an employer gives consent. If an employer does not consent, then the Fourth Amendment to the U.S. Constitution requires that OSHA seek a warrant. Probable cause is required, but a lesser showing is required in OSHA matters than in criminal matters. For OSHA inspection purposes, probable cause is established if OSHA can show either specific evidence of an existing violation or that the inspection was conducted based on “neutral criteria” contained in “reasonable legislative or administrative standards,” such as a Regional Emphasis Program.

Mar-Jac, while encouraging, was issued as an unpublished decision, meaning that it not binding on federal courts outside the Eleventh Circuit states of Alabama, Florida, and Georgia. Although the decision is too recent for OSHA to have taken a position yet, OSHA could argue that its impact is limited to cases in those three states. Employers should remember the Mar-Jac decision when OSHA attempts to expand the scope of an inspection based on the employers' inclusion in a National, Regional, or Local Emphasis Program or the fact that their OSHA 300 Logs show various injuries or illnesses. This is an important decision that all employers should have handy should OSHA attempt to expand its inspection at your particular plant location.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Parts of this Column were taken from the latest Constangy Workplace Safety Practice Group client alert.