A federal district court ruled on May 2, 2011, that OSHA has the right to subpoena safety audits and other reports prepared by an employer’s insurance carrier. Solis v. Grinnell Mut. Reinsurance Co., No. 3:11-cv-50014 (N.D. Illinois filed 01/20/2011). In July 2010, two teenage employees of Haasbach, LCC were killed when they became engulfed in corn in a grain elevator. At the time of the incident, the workers were “walking down the corn” to make it flow while machinery used for excavating the grain was running. As part of its investigation, OSHA issued a subpoena to the employer’s workers’ compensation insurance carrier, Grinnell Mutual Reinsurance Company, requesting documents concerning safety inspections Grinnell prepared for the employer.

Grinnell objected to the subpoena on the grounds that employers and insurers would be discouraged from conducting voluntary safety inspections if information contained in inspection reports could be used against employers during later OSHA proceedings. The court disagreed and ordered the records be given to OSHA. It noted that OSHA has the authority to require the production of relevant evidence and the ability to issue a subpoena to obtain that evidence. It found that the requested documents, including copies of safety inspection reports, applications for insurance coverage, and correspondence between the employer and the insurer “reasonably relate to the investigation of the incident and question of OSHA jurisdiction.” The court also ordered Grinnell to testify about the documents.

The court’s ruling has important implications for employers. An employer should recognize that OSHA may attempt to obtain safety inspection reports, incident reports, and other safety documentation from the employer and its insurance company. If a report identifies safety issues, the employer should promptly take corrective action and carefully document its response. Corrective action may include abating the hazard, performing additional training and improving safety procedures. Documenting these efforts will help the employer prove to OSHA that it made a good faith effort to address safety concerns