In a significant decision for employers, the 11th Circuit Court of Appeals ruled that the Occupational Safety and Health Administration 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 case started when an employee at Mar-Jac Poultry, Inc., a poultry-processing company based in Georgia, was injured in 2016 while making an electrical repair with a non-insulated screwdriver, resulting in the employee’s hospitalization, according to a post written by Littler’s Thomas Metzger and Sarah K. Squillante.
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.
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. OSHA did not seek a new inspection warrant, but instead appealed the district court’s decision to the Eleventh Circuit.
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. But 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 Littler authors write that the court’s decision is a limit to OSHA’s investigatory power within the 11th 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.”
The decision is important for employers, the authors conclude, because it means OSHA must establish probable cause to expand an accident-based inspection. It also means 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,” the Littler authors write, “an employer should carefully consider its options to appropriately limit the scope of the inspection.”
