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11th Circuit Limits Scope of Accident-Based OSHA Inspection

Sat December 1, 2018 Publications

When Occupational Safety and Health Administration (OSHA) comes knocking on the door for an accident-based inspection, can it require the employer to submit to a comprehensive inspection of the facility, not just an inspection of the hazard at issue? This question was recently asked in U.S. v Mar-Jac Poultry, Inc., No. 16-17745, 2018 WL 4896339 (11th Cir. Oct. 9, 2018).

OSHA is the federal agency responsible for enforcing the Occupational Safety and Health Act which sets and enforces workplace and safety standards. While states are encouraged to develop and operate their own plans and 26 states do, Florida, Georgia and Alabama are covered by federal OSHA. OSHA’s principal enforcement means are inspections–(1) programmed inspections which are randomly generated or (2) unprogrammed inspections based on information received concerning a specific facility, often accident-related information provided by the employer in compliance with law.

An unprogrammed inspection occurred in Mar-Jac. There, the employer, a poultry processing plant in Georgia, reported an electrical accident which caused severe injuries to an employee. Four days later, OSHA sent an inspection team. Rather than limit the investigation to the hazards involved in the accident, OSHA sought to conduct a “comprehensive inspection of the entire facility for additional hazards” based on information in Mar-Jac’s OSHA 300 logs, the work-related serious illness and injury logs mandated by federal regulation. Mar-Jac refused. OSHA obtained a judicial warrant for a comprehensive inspection. Mar-Jac filed an emergency motion to quash which was granted by the district court.

OSHA appealed, and the Eleventh Circuit affirmed the district court. While the court recognized that OSHA 300 logs “can be relevant to whether hazards exist,” there was little information about the illnesses and injuries listed on Mar-Jac’s OSHA 300 logs. The court found the information listed did not establish that there were hazards at the workplace, and, moreover, a hazard is not necessarily a violation. Thus, based on the logs, the court held there was no reasonable suspicion that a violation existed to support OSHA’s warrant application.

This decision should be considered when advising employers who wish to limit consent or challenge a warrant for a comprehensive accident-based inspection by OSHA in Florida, Georgia, or Alabama.

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