On the front lines with Fisher Phillips:
An accident at your workplace occurs and OSHA comes to investigate. Once at your facility, however, OSHA tells you they want to expand their inspection to cover your entire facility — top to bottom. What authority does OSHA have to expand the inspection and under what circumstances?
In a significant victory for employers, on Oct. 9, 2018, the United States Court of Appeals for the Eleventh Circuit (with jurisdiction over Alabama, Georgia and Florida) limited OSHA’s ability to expand inspections in United States v. Mar-Jac Poultry Inc.
On Feb. 3, 2016, an employee at Mar-Jac Poultry Inc. (“Mar-Jac”) was injured at the company’s poultry processing facility in Georgia while trying to repair an electrical panel. Mar-Jac reported the injury to OSHA because the employee was hospitalized and OSHA sent an inspection team to the facility within a few days.
While Mar-Jac was subject to a Regional Emphasis Program (REP) for poultry-processing facilities — and thus subject to random inspections based upon neutral selection criteria — OSHA’s investigation stemmed only from the accident. Nevertheless, OSHA requested to inspect not only the accident area but also the entire facility for hazards. Mar-Jac refused to permit an expanded inspection.
As a result of its limited inspection, OSHA found three potential violations relating to the accident. Mar-Jac also produced its OSHA 300 logs for three years as required. OSHA concluded that the injuries reported on those logs suggested possible violations of OSHA standards related to ergonomic hazards, biological hazards, struck-by hazards and more.
OSHA seeks a warrant to expand the scope
In March 2016, OSHA sought a warrant from a federal magistrate judge to expand the inspection to Mar-Jac’s entire facility. OSHA argued that probable cause existed and the warrant should be granted because 1) OSHA inspectors had personally witnessed hazards related to the electrical accident, and review of the OSHA 300 logs showed hazards common to poultry processing facilities and 2) the REP granted it the right to conduct the inspection. The magistrate judge granted the warrant.
Mar-Jac moved to quash the warrant and the federal court held an evidentiary hearing. As a result of the hearing, the magistrate judge recommended the warrant be quashed because probable cause did not exist to expand the scope of the inspection based upon the injuries reported in the OSHA 300 logs and because OSHA had not selected Mar-Jac for an inspection according to the randomized, neutral criteria set forth in the REP. The federal district judge upheld the magistrate judge’s recommendation to quash the warrant. OSHA then appealed the case to the Eleventh Circuit Court of Appeals.
The Appeals Court affirms and finds that the warrant lacked probable cause
In its decision on Oct. 9, 2018, the Eleventh Circuit affirmed the district court and found that probable cause did not exist to expand the inspection. There are three important aspects to this decision.
First, it is notable that OSHA did not appeal the district court’s finding that OSHA did not have grounds for a warrant based upon the REP. In other words, even OSHA recognized that simply because an employer is subject to an REP (or the national emphasis program, NEP), OSHA does not have grounds to expand an accident-based inspection solely because of the REP or NEP.
Second, the Eleventh Circuit held that hazards and violations are distinct. OSHA argued that the existence of injuries on the OSHA 300 logs indicates the presence of hazards at the worksite, which in turn indicate the possibility of violations of the OSH Act. The Eleventh Circuit rejected this argument, holding that it “is simply not the case that the existence of a hazard necessarily establishes a violation.” In coming to this conclusion, the court noted that, whether proceeding under the General Duty Clause of the OSH Act or under a specific regulation, OSHA must prove more than the mere existence of a hazard to prove a violation occurred. In the case of the General Duty Clause, OSHA must prove not only that a hazard existed but that the hazard was recognized, that it was likely to cause death or serious physical harm and that the hazard was preventable. Similarly, in order to prove a violation of a specific regulation, OSHA must prove that the standard applies, that it was violated, that an employee was exposed to the hazard and that the employer knew of the hazard.
Finally, and perhaps most importantly, the Eleventh Circuit held that the existence of recorded injuries on OSHA 300 logs do not per se demonstrate that the employer likely violated the OSH Act. OSHA argued that the number of injuries recorded in the OSHA 300 logs showed that Mar-Jac was failing to take adequate steps to prevent workplace injuries. The Eleventh Circuit correctly noted, however, that OSHA 300 logs provide little detail about the cause of the injury and thus, the “existence of injuries … does not necessarily mean that the injuries were caused by OSHA violations or justify the issuance of an administrative warrant for evidence of OSHA violations.”
Additionally, the Eleventh Circuit found that whether injuries recorded in OSHA 300 logs can lead to reasonable suspicion to support a warrant based upon the logs is a fact-intensive inquiry because the logs “can be relevant to whether hazards exist.” In the Mar-Jac case, however, the court found that the logs did not support such a finding. For example, the court found that 25 recorded injuries related to possible ergonomics hazards over the course of three years and, in a facility of 1,112 employees, did not create reasonable suspicion that ergonomics violations were likely to exist.
The Mar-Jac decision is a significant victory for employers. Employers should take away the following points from the decision:
• OSHA cannot expand an accident-based inspection simply because the employer also is subject to an emphasis program. Rather, there must be probable cause for the expansion.
• The existence of a hazard does not necessarily imply the existence of a violation.
• OSHA cannot expand an inspection simply because of injuries recorded in OSHA 300 logs. Rather, OSHA must provide sufficient evidence that the recorded injuries demonstrate not only that hazards exist at the workplace, but that violations are likely to be found as well.
If an employer is faced with an OSHA request to expand an accident-based inspection, it should contact counsel to determine its legal rights.
Travis Vance is a partner in the Fisher Phillips’ Charlotte office. He can be reached at firstname.lastname@example.org or 704.778.4164. Pamela Williams is a partner in the firm’s Houston office. She can be reached at email@example.com or 713.292.5622. Visit their website at fisherphillips.com .