On October 9, 2018, the U.S. Court of Appeals for the Eleventh Circuit affirmed a district court decision to limit the scope of an inspection sought by the Occupational Safety and Health Administration (OSHA). In this significant decision for employers, the court of appeals held that OSHA may not conduct a facility-wide or “wall-to-wall” inspection based on a reported accident and the employer’s OSHA 300 logs alone.
The Occupational Safety and Health Act of 1970 (29 U.S.C. §651 et seq.) established workplace safety standards and delegated broad authority to the Secretary of Labor to enforce those standards. Among other provisions, the Act authorizes programmed or periodic inspections based on neutral criteria, and unprogrammed inspections based on specific evidence of a particular violation of a safety standard. If the Occupational Safety and Health Administration (“OSHA”) seeks to, for example, expand an inspection, it must establish probable cause to do so. In this context, “probable cause” is a less rigorous standard from that used in criminal matters. For inspections, probable cause is established if OSHA can demonstrate either (1) specific evidence of an existing violation, or (2) that the inspection was conducted based on neutral criteria contained in legislative or administrative standards, such as a national or regional emphasis program (“NEP” or “REP”).
Facts and Procedural History
Mar-Jac Poultry, Inc. is a poultry processing company based in Georgia. In 2016, a Mar-Jac employee was injured while making an electrical repair with a non-insulated screwdriver, resulting in the employee’s hospitalization. Mar-Jac reported the incident as required under OSHA regulations. OSHA sent a team to Mar-Jac’s facility to conduct an unprogrammed inspection. During their visit, the investigators requested an inspection not just of the electrical hazards related to the accident, but of the entire facility as well (a “wall-to-wall” inspection). Mar-Jac permitted inspection of the accident site and the tools involved, but did not consent to OSHA’s inspection of additional areas.
OSHA then submitted an application to a federal magistrate judge seeking a judicial warrant to inspect the entire facility. The scope of OSHA’s warrant included not only hazards implicated by the accident but also alleged hazards identified in the company’s OSHA logs, and the hazards that OSHA’s regional emphasis program had identified as being of particular concern within the industry. OSHA sought the inspection based on two grounds: (1) that the investigators had personally observed hazards relating to the electrical incident, and (2) that an inspection of the company’s OSHA 300 logs allegedly revealed six hazards common to poultry processing facilities.
The magistrate judge initially granted the application for the warrant in its entirety, and Mar-Jac promptly filed an emergency motion to quash the inspection warrant. Following a hearing, the magistrate judge issued a report recommending that the motion be granted in favor of Mar-Jac because OSHA had not demonstrated probable cause to expand the scope of the inspection. The district court then adopted the magistrate judge’s report and confirmed that the inspection warrant should be quashed. The district judge determined that OSHA could not expand the inspection based upon the injuries identified in the OSHA 300 logs, and that the REP also did not give OSHA the authority to expand the inspection at the company’s facility. OSHA did not seek a new inspection warrant, but instead appealed the district court’s decision to the Eleventh Circuit.
Decision and Discussion
On appeal, OSHA primarily argued that it was being held to a higher standard of proof than was appropriate, and that the existence of a “hazard” is an indication of a “violation” that justified a full-scale investigation. The district court had rejected OSHA’s original argument supporting a wall-to-wall inspection based on the REP, which OSHA did not appeal. OSHA seems to have acknowledged by its failure to appeal the issue that an REP or NEP does not permit OSHA to expand the scope of an inspection that started as an accident-based inspection. The Eleventh Circuit, therefore, focused its decision on OSHA’s ability to establish probable cause based on specific evidence alone.
The appellate court rejected OSHA’s argument that a “hazard” is an indication of a “violation,” holding that a recordable injury or illness alone does not show that such an injury resulted from a violation of an OSHA standard. The court of appeals found that the existence of a “hazard” does not necessarily establish the existence of a “violation,” and that it is a violation that must be shown to establish adequate cause in a warrant application.
The court also was not persuaded by OSHA’s assertion that the company’s OSHA 300 logs provided additional evidence of potential violations; instead, the court stated that the vague descriptions (with regard to both the nature of the injury and the department in which it occurred) and the infrequency of injuries reported in the logs failed to provide reasonable suspicion that violations were likely to be found. The court noted also that a review of the employer’s previous citations from the last seven years demonstrated that no citations were issued for violations regarding ergonomic, biological, struck-by, or slip and fall hazards.
Ultimately, the court affirmed the district court’s decision, and blocked OSHA’s effort to expand the inspection.
Scope and Limitations
The court’s decision is a limit to OSHA’s investigatory power within the Eleventh Circuit and potentially nationwide. OSHA is not entitled to unrestricted access to a company’s facility based on a reported injury, or based solely upon information in the OSHA injury and illness logs. In addition, although an employer may have recorded injuries on its OSHA 300 logs, the injuries do not necessarily mean that the employer violated an OSHA standard. However, the decision from the appeals court should not be interpreted to mean that a court will never issue a warrant based on incidents recorded in an employer’s OSHA 300 logs.
Nonetheless, this is an important decision for employers. OSHA must establish probable cause to expand an accident-based inspection. OSHA cannot expand the inspection based solely upon a national or regional emphasis program. And OSHA cannot expand an inspection simply by referring to alleged hazards identified in OSHA 300 logs. If OSHA seeks to expand an accident-based inspection, an employer should carefully consider its options to appropriately limit the scope of the inspection.