Seyfarth Synopsis: In this recent case a Federal Magistrate Judge finds that OSHA has gone too far in expanding an incident inspection into a wall-to-wall inspection.
A District Court Magistrate Judge recently recommended that the Court quash a warrant "improvidently granted" to OSHA to expand an accident investigation into a broader Regional Emphasis Program (REP) inspection. Report and Recommendation (R&R), In the Matter of the Establishment Inspection of Mar-Jac Poultry, Inc., No. 2-16-MC-004-JCF (N.D. GA August 5, 2016).
In attempting to expand the accident investigation into a much broader inspection under the REP, OSHA argued that there was overlap between the hazards that caused the accident and hazards addressed by the REP, as well as information reflected on the Company's OSHA 300 logs showing work-related injuries leading to medical treatment or days lost from work. The Magistrate found that the fact that there was overlap between the hazards that triggered the accident and the hazards in the REP was not sufficient to expand the inspection to cover everything in the REP. Rather, the inspection could only be expanded to cover those areas where OSHA had uncovered potential violations, in this case electrical issues. The Magistrate also found that OSHA's analysis of the OSHA 300 logs likewise confused "exposure to potential hazards with evidence of a possible violation." The Magistrate said that "it may be true that enough injuries of a certain type could support a finding of probable cause to inspect an entire facility for a specific violation, but OSHA's presentation on this point falls well short of that mark."
The Magistrate found that the question was not whether potential hazards exist (all business have potential hazards), but whether potential OSHA violations existed, and OSHA had not made that showing. OSHA is currently in the process of filing objections to the Magistrate's ruling in hopes that the District Court Judge will reverse this finding. We will update this blog once the District Court rules.
For employers, the important take-away from this case is that without specific and well-founded evidence of a potential OSHA violation, OSHA is not entitled to turn an incident inspection into a wall-to-wall inspection.
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