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Court Limits the Scope of OSHA Inspections

An important decision for employers was issued on October 9, 2018, by the U.S. Court of Appeals for the Eleventh Circuit in United States v Mar-Jac Poultry, Inc., No. 16-17745.  The Mar-Jac case limited OSHA’s ability to expand accident investigations beyond their original and intended scope.

 

The case began on February 3, 2016, when an employee of Mar-Jac Poultry, a poultry processing facility in Georgia, was injured while trying to repair an electrical panel.  An arc flash resulted in severe burns to the employee’s hand and face requiring the employee’s hospitalization.  The company reported the injury to OSHA as it was required to do by C.F.R. 1904.39.  In response, OSHA sent an inspection team to Mar-Jac’s facility on February 8, 2016.  The OSHA investigators requested to inspect not only the hazards involved with the electrical accident, but also a comprehensive inspection of the entire facility for additional hazards.  Mar-Jac objected to OSHA’s “wall to wall inspection” and only allowed OSHA to inspect the electrical accident site and the tools involved.  Mar-Jac also provided the inspection team with OSHA 300 logs for the years from 2013 to 2015.  Based upon its review of the OSHA 300 logs, OSHA concluded that there were possible violations of standards related to ergonomic, biological, and chemical hazards.  In addition to this specific information, OSHA had created a Regional Emphasis Program for Poultry Processing Facilities in Georgia and neighboring states thereby providing neutral criterion for a random inspection.

 

On March 31, 2016, OSHA submitted an application to a federal magistrate judge seeking a judicial warrant to inspect the entire Mar-Jac facility.  OSHA asserted that probable cause existed to conduct a comprehensive search of the entire facility for hazards identified in the OSHA 300 logs as well as those identified in the Regional Emphasis Program for Poultry Processing Facilities.  The magistrate granted the application in its entirety and issued a judicial inspection warrant for OSHA on April 1, 2016.  Mar-Jac filed an emergency motion to quash the inspection warrant.  An evidentiary hearing was held before the same magistrate who issued the warrant in the first place. The magistrate agreed with Mar-Jac that there was no probable cause to inspect the entire facility, and quashed the inspection warrant.  OSHA filed an appeal and the District Court Judge affirmed the Magistrate.  OSHA appealed to the Eleventh Circuit Court of Appeals.

 

The Court of Appeals acknowledged that 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 OSHA to obtain an inspection warrant.  Among other arguments, OSHA argued that the injuries and illnesses listed on the OSHA 300 logs created a “reasonable suspicion” of hazards suggesting the existence of violations of OSHA standards and regulations.  Therefore, OSHA argued sufficient probable cause existed to issue an inspection warrant authorizing a search of the entire facility.  The Court of Appeals rejected this argument finding that the mere listing of recordable injuries or illnesses on OSHA 300 logs does not by itself establish OSHA violations and does not meet the standard required to issue an inspection warrant.

 

This decision is not binding on federal courts outside the Eleventh Circuit states of Alabama, Georgia and Florida.  Further, the specific facts for a warrant application vary from cases to case.  Therefore, employers should not interpret the Mar-Jac case to mean that no court will ever issue an inspection warrant based on OSHA injury and illness logs.  But the Court’s reasoning in this case is applicable to every OSHA warrant situation.  Therefore, employers should consider whether to request a warrant in certain circumstances whenever OSHA appears for an inspection.

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