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OSHA’s Attempt To Expand Inspection Based on Illness and Injury Logs Quashed

Published by and on November 21, 2018

In a recent victory for employers, the U.S. Court of Appeals for the Eleventh Circuit affirmed a lower court’s order quashing an administrative warrant for the inspection of a poultry processing plant.

In a recent victory for employers, the U.S. Court of Appeals for the Eleventh Circuit affirmed a lower court’s order quashing an administrative warrant for the inspection of a poultry processing plant, limiting OSHA’s ability to expand accident investigations beyond their intended scope. USA v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018).

In February 2016, an employee of Mar-Jac Poultry, Inc. (“Mar-Jac”) was injured while repairing an electrical panel requiring the employee to be hospitalized. OSHA regulations require that the injury be reported, and Mar Jac timely complied. In response, OSHA sent out compliance officers to inspect the plant. Upon arrival, OSHA attempted to expand the scope of the inspection based on two things: First, a National Emphasis Program focus on poultry processing facilities, and second, Mar Jac’s recordkeeping forms—-specifically, their 300 logs.

Mar Jac permitted a limited inspection related to the employee’s injury and OSHA sought a warrant to expand the scope of the investigation, arguing that the National Emphasis Program granted the agency authority to expand the inspection and that the 300 Logs established six common hazards at the facility. OSHA argued that there was probable cause to believe such hazards existed. In April, a magistrate judge granted a warrant to OSHA.

Mar-Jac filed a motion to quash the warrant and a magistrate judge granted it on the grounds that OSHA did not have reasonable suspicion of the other hazards as alleged by OSHA based on the 300 Logs and that Mar-Jac had not been selected by neutral criteria under the NEP. OSHA appealed and a U.S. district court judge upheld the magistrate judge’s decision quashing the warrant. OSHA further appealed to the Eleventh Circuit.

Before the Eleventh Circuit, OSHA argued that the 300 Logs provided reasonable suspicion that violations existed. The Eleventh Circuit disagreed and held “these logs on their own fail to establish reasonable suspicion of … violations.” Of importance, the recordkeeping regulation itself specifically states that recording injuries or illnesses does not mean that an employer is at fault or that a standard has been violated. 29 C.F.R part 1904.0. Accordingly, the Court concluded, recording work-related injuries or illnesses does not mean that they were the result of a violation of an OSHA standard, rule or regulation and recorded injuries or illnesses don’t “justify the issuance of an administrative warrant for evidence of OSHA violations.”

Welter Insight

If an injury occurs at your facility, OSHA regulations require that the injury be reported and logged. If OSHA decides to inspect your facility as a result of the injury report and you consent to the inspection, for all employers, but especially those in Florida, Georgia, and Alabama, this does not constitute a blanket right to inspection. Employers should always consider carefully the scope of their consent to inspection. Consider consenting to a limited inspection based on the injury report and objecting and requiring a warrant for any expansion of the inspection (even if you are not in the Eleventh Circuit).

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