OSHA Could Not Inspect Whole Plant Based on One Injury

By Jeffrey Rhodes November 7, 2018
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​The Occupational Safety and Health Administration (OSHA) could not obtain a broad warrant to inspect a poultry-processing plant despite a worker's serious injury and an accident log showing other injuries, the 11th U.S. Circuit Court of Appeals ruled.

On Feb. 3, 2016, an employee of Mar-Jac Poultry Inc., a processing facility, was injured at work while attempting to repair an electrical panel using a uninsulated screwdriver. The worker suffered severe burns to one of his hands and face and required hospitalization. The next day, the company reported the electrical accident to OSHA, as required by federal regulation.

On Feb. 8, 2016, OSHA sent an inspection team to Mar-Jac's facility to make an unannounced inspection. The team asked to inspect not only the hazards involved in the accident but also the entire facility for additional hazards. The company consented to inspection of the electrical accident site and the tools involved but refused to permit inspection of any additional areas. 

OSHA thus performed a limited inspection and found potential violations of its standards regarding:

  • Electrical safety.
  • Personal protective equipment.
  • The guarding of machines and controlling of hazardous energy.

[SHRM members-only how-to guide: How to Determine Regulatory Requirements for Safety]

In addition, Mar-Jac provided OSHA with a copy of part of an evaluation performed by an outside consultant criticizing the company's lack of an appropriate program to abate risks to employees from electrical shocks. The company also gave OSHA the company's work-related serious illness and injury logs (OSHA 300 logs) from 2013 through 2015.

OSHA concluded that the logs suggested violations in six areas common to poultry processing:

  • Record-keeping issues.
  • Ergonomic hazards.
  • Biological hazards.
  • Chemical hazards.
  • "Struck-by" hazards, in which someone is at risk of being struck by an object.
  • Slip, trip and fall hazards.

OSHA's Poultry Regional Emphasis Program (Poultry REP) also identified 16 other categories of hazards for poultry-processing facilities in Georgia, where the Mar-Jac plant is located, and neighboring states. These types of hazards could lead to a randomly generated, programmed inspection of a facility.

Based on the 1978 U.S. Supreme Court decision Marshall v. Barlow's Inc., a federal agency cannot inspect a private-company facility for alleged civil violations without a judicial warrant. Thus, on March 31, 2016, OSHA applied to a federal magistrate judge for a judicial warrant to inspect the Mar-Jac facility with respect to the three hazards directly implicated by the accident, the six hazards implicated by the OSHA 300 logs and the hazards that the Poultry REP identified as concerning.

On April 1, 2016, the magistrate judge granted the application in its entirety and issued a judicial inspection warrant for the whole facility, as requested by OSHA. Mar-Jac appealed the decision to a federal district court judge, who ordered the magistrate judge to conduct an evidentiary hearing as to whether the requested warrant should be made void.

After the hearing, the court determined that the warrant should be made void for a lack of reasonable suspicion for the five violations that OSHA asserted were supported by the OSHA 300 logs and the hazards identified in the Poultry REP. The court found, however, that OSHA had established probable cause for a limited warrant for issues concerning:

  • Electrical dangers.
  • Personal protective equipment.
  • The guarding of machines and controlling of hazardous energy.
  • Record-keeping violations.

The court suggested that OSHA seek a limited warrant confined to these issues.

Instead, OSHA appealed the decision to the appeals court, seeking an inspection warrant granted in full. The appellate court considered the evidence and findings of the district court and agreed that OSHA had not presented sufficient evidence to support a broad inspection. Notably, the court found that the number of accidents recorded over the past several years was quite small given that the plant employed 1,112 workers. For example, only 12 eye injuries were recorded since 2013.

Moreover, the court reasoned that accidents alone do not show probable cause to suspect health and safety violations by an employer. OSHA needed to present further evidence demonstrating the likelihood that the accidents were caused by negligent or unsafe conditions at the plant.

United States v. Mar-Jac Poultry Inc., 11th Cir., No. 16-17745 (Oct. 9, 2018).

Professional Pointer: Employers often assume that a regulatory agency has an automatic right to inspect their premises at will. Nevertheless, the Fourth Amendment requires agencies to obtain a warrant, even for civil violations, and thus employers can often contest agency inspections. Courts will generally limit an inspection to the scope supported by the available evidence.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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