Employers often struggle with responding to an Occupational Safety and Health Administration’s (“OSHA”) safety investigator’s knock on their door.  While employers have the right to refuse the investigator entry to the premises, the likely result will be the same investigator returning with an administrative search warrant.  A new Fifth Circuit Court of Appeals decision discusses an unusual situation where an employer adamantly refused OSHA entry to its facility despite the issuance of an administrative warrant.

 

In Trinity Marine Products, Inc. v. Chao, after the company refused the OSHA inspector entry to its facility, he returned with an administrative warrant.  The company still refused entry, claiming a right to review documentation supporting issuance of the warrant.  The OSHA investigator returned with three U.S. Marshals in tow, threatening to arrest plant management if they still refused entry.  The company finally relented to the review, but later defended resulting citations by claiming that OSHA had violated its Fourth and Fifth Amendment rights by conducting the inspection before it had a chance to challenge the warrant in federal court.

 

The Fifth Circuit rejected these arguments, affirming judgment for OSHA.  The court found no Constitutional right to a pre-execution contempt hearing.  Administrative warrants, like criminal warrants, can be executed by means of reasonable force.

 

From a practical perspective, employers should only refuse OSHA entry in highly unusual circumstances.  If an investigator is forced to leave and return with an administrative warrant, the employer can expect that the inspection and any resulting citations and penalties will be greater than would be the case if the inspector is permitted immediate entry.  A small delay (meaning an hour or less) to locate a responsible person to accompany the inspector is reasonable.  However, absent extraordinary plant conditions, allowing OSHA to do their job is usually the best course of action.