There is an OSHA Inspector in the Lobby — Now What?
A trend is developing among OSHA inspectors around the country for those inspectors, when investigating a worksite in response to a reported injury, to try to inspect the facility far beyond the limited circumstances of the injury itself. Inspectors often say they are following a national emphasis program either in regard to the industry involved or particular hazards. In other circumstances inspectors have claimed that, as they walked to the location where the injury occurred, they noticed several other pieces of machinery that caused a certain type of hazard and used that concern to broaden their inspection to cover those areas. Finally, I have seen OSHA inspectors comb OSHA 300 logs and then claim that they should be able to broaden the inspection based upon the injuries reported in those logs.
A recent decision by the United States Court of Appeals for the Eleventh Circuit brings all of these efforts to expand inspections into question. When an injury that necessitates a phone call report to OSHA occurs, an OSHA inspector certainly has a right to come to the facility and inspect the circumstances of that injury. But if the OSHA inspector wants to do a broader inspection, the employer has the right to say no, which forces OSHA to obtain a subpoena in federal court to allow them to perform the broadened inspection. The employer can then move to quash the subpoena.
In the Eleventh Circuit case, there had been an injury at a poultry plant and when OSHA arrived, it informed the plant officials that it wanted to do a full facility inspection based upon the regional emphasis on poultry facilities, the inspector’s claim being that he had seen other hazards in the facility, and because the OSHA logs showed certain types of frequent injuries.
The Court sided with the employer. Perhaps recognizing the weakness of its argument, OSHA did not argue for the broader inspection based upon the regional emphasis program. The Court pointed out to OSHA that only observed violations, not observed hazards, can justify a broadened inspection. Finally, the Court found no real pattern of any types of injuries in the OSHA 300 log that would have justified a broadened inspection. As we all know, because OSHA 300 logs do not include a lot of detail, there would need to be some fairly significant correlation between the reported injuries and a potential violation for OSHA to use logs as grounds to perform a broadened inspection.
An employer should consider its options when an OSHA inspector tries to extend the investigation of a specific injury to something much larger. This case demonstrates that those options include opposing OSHA’s attempts to broaden an inspection prompted by a single reported incident. Although it is important for an employer to consider its ongoing relationship with OSHA in choosing how to respond to such requests, everyone involved needs to understand that a company has a right to say no.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.