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Eleventh Circuit Refuses to Allow Expanded OSHA Inspection

    Client Alerts
  • October 17, 2018

Occupational Safety and Health Administration workplace inspections are often triggered by an employee injury or complaint. In such circumstances, OSHA rules only permit the inspector to investigate the workplace safety factors involved in the injury or complaint. However, OSHA can expand the scope of the investigation if its investigation or observations lead the inspector to conclude that other workplace safety issues may exist. Last week, the Eleventh Circuit Court of Appeals upheld a lower court’s decision to quash an OSHA warrant based on lack of probable cause to investigate safety concerns unrelated to the employee injury that prompted the inspection.

In United States v. Mar-Jac Poultry, Inc., the defendant’s employee was injured while working on an electrical panel. After beginning its inspection, OSHA notified the employer that it would conduct a comprehensive safety review of the facility. The employer refused to consent to the broader investigation, and OSHA obtained an inspection warrant. The employer filed a motion in federal district court seeking to quash the subpoena. The district court agreed, concluding that OSHA did not have probable cause to expand the investigation.

On appeal, OSHA argued that the employer’s OSHA 300 logs demonstrated evidence of employee exposure to ergonomic, struck-by, and chemical and biological hazards, justifying the broader investigation. The Eleventh Circuit rejected this argument, finding that OSHA did not have adequate evidence to establish probable cause. The mere presence of employee injuries on the OSHA 300 log does not satisfy this burden. In this case, the reported injuries were too infrequent or unrelated to one another to meet the probable cause standard.

While the employer prevailed in this case, the Eleventh Circuit’s decision was very fact specific. In other situations, OSHA may be able to provide employee complaints, prior citations, or other evidence that could meet this probable cause standard. Before consenting to or refusing an OSHA request for an expanded safety audit, employers should consult with legal counsel to determine the best response to the change in the inspection’s scope.