On October 9, the U.S. Court of Appeals for the Eleventh Circuit found that the Occupational Safety and Health Administration could not expand the scope of an injury-based inspection to a wall-to-wall inspection based on the injuries and illnesses recorded on the employer’s OSHA 300 Logs. This is an important decision that all employers should have handy should OSHA attempt to expand its inspection.

An employee at Mar-Jac Poultry in Georgia was injured while attempting to repair an electrical panel using a non-insulated screwdriver. Because the employee was hospitalized as a result of the injury, the Company reported the case to OSHA, as it was required to do under § 1904.39. OSHA began the inspection by focusing on the accident, but then the inspectors sought to conduct a wall-to-wall inspection of the entire facility, looking well beyond the reported electrical hazard that had initially prompted the inspection. Mar-Jac consented only to the focused scope of the inspection and provided, among other documents, its OSHA 300 Logs for 2013 through 2015.

Based on the injuries and illnesses recorded on the OSHA 300 Logs, as well as the fact that Mar-Jac was included within the Regional Emphasis Program for Poultry Processing Facilities, OSHA sought and was granted a warrant to inspect the entire facility for a wide range of safety and health issues, including ergonomic, biological, and chemical hazards. OSHA’s position at the time of this inspection was that if an inspected employer’s business was covered by a Regional Emphasis Program, the Agency was entitled to automatically expand the scope of the initial inspection to conduct a comprehensive wall-to-wall inspection looking at the categories of hazards addressed by the REP, in this case the 16 hazard categories in the Poultry Processing REP.

Mar-Jac filed an emergency motion to quash the warrant. An evidentiary hearing was held before the magistrate who had issued the warrant, and he decided to quash the warrant. The federal District Court judge agreed with the magistrate judge and issued a decision finding, among other things, that being an establishment within the Regional Emphasis Program did not provide administrative probable cause to support an expansion of the scope of the injury-based inspection. The District Court further found that the listing of work-related injuries and illnesses on the OSHA 300 Logs did not show that there was probable cause to believe that violations existed. OSHA then appealed to the Eleventh Circuit, but in its appeal no longer argued that its inspection could be expanded based on REP coverage of the employer.

Discussion

OSHA cannot conduct an inspection unless an employer consents. If an employer does not consent, then the Fourth Amendment to the U.S. Constitution requires that OSHA seek a warrant. Probable cause is required, but a lesser showing is required in OSHA matters than in criminal matters. For OSHA inspection purposes, probable cause is established if OSHA can show either specific evidence of an existing violation or that the inspection was conducted based on “neutral criteria” contained in “reasonable legislative or administrative standards,” such as a Regional Emphasis Program. Only the first criterion (specific evidence of an existing violation) was at issue in this case because OSHA chose not to argue on appeal that the expanded scope of the inspection was justified by the Poultry Processing REP. Accordingly, the sole question on appeal was whether OSHA had shown a “reasonable belief that a violation has been or is being committed,” or whether OSHA had shown “reasonable suspicion” of likely violations.

OSHA argued that the injuries and illnesses on the OSHA 300 logs created reasonable suspicion of hazards which suggested the existence of violations. The Eleventh Circuit rejected this argument, finding that a recordable injury or illness does not by itself show that it resulted from an OSHA violation. The Court distinguished hazards from violations, and explained that the existence of a hazard does not necessarily establish a violation. A violation must be shown to demonstrate reasonable suspicion in a warrant application.

In reaching its conclusion, the Court specifically noted that Mar-Jac had a workforce of more than 1,100 employees but only 25 cases of various musculoskeletal illnesses (such as tendinitis) that had been recorded over the three-year period. According to the Court, this did not establish that there was a reasonable suspicion of ergonomics-related hazards, especially where there was no pattern of illness by department or body part. Similarly, the existence of 12 eye injuries over the three-year period did not establish reasonable suspicion that biological or chemical violations existed.

Lessons for employers

Mar-Jac, while encouraging, was issued as an unpublished decision, meaning that it can be cited and relied upon to support arguments in future cases but is not binding precedent in the Eleventh Circuit. The decision is also not binding on federal courts outside the Eleventh Circuit states of Alabama, Florida, and Georgia. Although the decision is too recent for OSHA to have taken a position yet, OSHA could argue that its impact is limited to cases in those three states.

In addition, the decision was based on the facts presented by OSHA to support the warrant in this particular case. The specific facts supporting a warrant application will always vary, and therefore Mar-Jac should not be interpreted to mean that a court will never issue a warrant based on the cases recorded on an OSHA 300 Log. A court could issue a warrant if there were a compelling pattern of injuries or illnesses, supported by other evidence, that showed a reasonable suspicion of a violation.

Despite its limitations, employers nationwide should remember the Mar-Jac decision when OSHA attempts to expand the scope of an inspection based on the employers' inclusion in a National, Regional, or Local Emphasis Program or the fact that their OSHA 300 Logs show various injuries or illnesses.