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What are your rights for refusing OSHA entry?
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A federal judge cited an employer and three safety consultants working for him for criminal contempt for refusing to allow a court-ordered federal health inspection.
Martin Foundry Co. Inc. owner Darrell Stone and representatives of Compliance Professionals Inc., all based in Kansas City, Mo., were found in criminal contempt after turning away Occupational Safety and Health Administration (OSHA) inspectors armed with a search warrant.
The judge ordered the defendants to jointly pay $10,778 to reimburse departmental costs. Martin Foundry and Stone are also each liable for $1,000 in fines for their failure to cooperate. The three third-party consultants will each pay fines of $2,000, based on a finding that they willfully impeded OSHA’s investigation and refused to comply with the warrant.
“Martin Foundry’s refusal to allow a comprehensive health inspection led OSHA to seek court intervention to ensure its workers are safe,” said Marcia Drumm, OSHA’s regional administrator in Kansas City. “We believe it’s really the first time in OSHA history that a company was found in criminal contempt for not allowing OSHA inspectors to inspect after a judge’s order,” added Department of Labor spokesman Scott Allen.
OSHA investigators attempted to inspect the foundry March 27, 2015, after the Missouri Department of Health reported that a recent test showed that a foundry employee had high levels of lead in his blood. Excessive lead in the blood can cause serious health problems, including anemia and damage to the brain and kidneys, according to OSHA.
Stone refused to allow inspectors into the foundry, leading OSHA to obtain a warrant and return April 7 to complete the inspection. The inspectors were once again turned away by Stone and representatives from Compliance Professionals, in violation of the warrant. OSHA returned later that day with U.S. Marshals. OSHA alleges that Stone and his consultants “persisted in obstructing OSHA’s investigators” after the U.S. Marshals left the worksite. The inspection was finally completed after contempt proceedings were initiated.
Stone told The Associated Press that OSHA “overreacted” and that it was his blood that had excessive lead, and that the lead didn’t come from exposure in the foundry, but from regularly handling shotgun shells.
Refusing OSHA Entry
Employers have the right to ask OSHA to obtain a search warrant before initiating an inspection; however, most do not avail themselves of this right.
“Search warrants are quite rare in the inspection process, which is probably why this issue tends to garner so much attention from time to time,” noted Gabe Sierra, founder and managing director of Prometrix Consulting, based in Washington, D.C., and former chief of staff for OSHA.
“Virtually all OSHA compliance officers that I’ve ever met say they hold disdain for chasing after warrants,” said Robert Box, principal consultant at Safety First Consulting, based in Texas. One inspector told Box that “If I have to go get a warrant, fine. But when I get back, I’ll be in more of a citing mood than a helping one.”
The inspector went on to relate that “as long as the employer is working with him and being cordial, he doesn’t necessarily include all findings in his report. He will point out small deficiencies to the employer so they can be addressed, rather than including them in his report,” Box said. If an employer requires a warrant, the inspector told Box, “Maybe I have more violations to report that day. … If the employer gives me the runaround with paperwork and hassle, I’ll return the favor.”
Of course, an OSHA compliance officer retaliating for having to obtain a warrant is illegal, Box added.
“At the end of the day, regardless of the interest in demanding a warrant, there is a balancing test employers need to apply when making that decision, said Eric Conn, founding partner and chair of the OSHA Workplace Safety Group at the law firm Conn Maciel Carey PLLC, based in Washington, D.C. “There is a very real risk of retaliation by OSHA for demanding a warrant, and there is a risk of a contempt finding depending on the path employers take to challenge the warrant.”
Asking for a Warrant: Yes or No?
The threat of demanding a warrant gives employers a bit of leverage to negotiate over the scope of the inspection and buys time for the employer’s chosen inspection representative to be present at the inspection, according to experts.
“I generally recommend that employers consent to OSHA inspections, but only after negotiating a reasonable scope to the inspection,” Conn said. The idea behind this tactic is to keep the inspection limited to just the subject of an employee complaint or the location/equipment involved in the incident that triggered the inspection, he said. “If OSHA will not agree to limit the scope to whatever the triggering event was, then demanding and challenging a warrant may be appropriate.”
Box also advises clients not to agree to OSHA’s inspection right away, advising them to tell the inspectors “Look, we want to work with OSHA to resolve this issue quickly, but if we can’t agree on the scope and boundaries of your inspection, then we can always wait about two weeks for you to return with your warrant.”
Another circumstance in which demanding or at least threatening to demand a warrant may be appropriate is if OSHA is not willing to wait a reasonable amount of time for your chosen inspection representative to be present to participate in the inspection, said Conn. “Many of my clients have designated the company’s corporate safety director or outside OSHA counsel as the only acceptable OSHA inspection representative,” Conn said. “For employers with multiple locations around the country, it may not be feasible for the designated inspection representative to arrive at the site of an unannounced inspection within an hour or two. We will often ask OSHA to wait for the representative to arrive or to come back the next day when the representative has time to travel to the site.”
Conn said this tactic “often triggers a bit of a kerfuffle,” but the threat of demanding a warrant, coupled with offering practical solutions—for example, allowing the officers to begin to review relevant records until the representative arrives—can lead to an agreeable arrangement.
If a required company officer will not be able to be onsite for a day or two, Box advises employers to tell inspectors “We want to work with OSHA and we have nothing to hide, but we are bound by our company policy that requires the presence of this person before an inspection can take place. We will be flexible where we can accommodate your needs and schedule after that person arrives, but we cannot allow the inspection at this time.”
Finally, if the idea behind asking for a warrant is to “clean up” safety operations at the worksite targeted for inspection, “this rarely, if ever works,” Box said. “OSHA can conduct employee interviews to reveal what directives and changes were made over the past couple of weeks, and what employees were coached to say and not say, which can come back to hurt the employer in a major way,” he said.
Another important thing to remember is not making a decision like this on the fly. “Employers should be proactive in establishing a policy, that has been vetted with specialized counsel, regardless of where they decide to fall on the spectrum of never, sometimes, or always insisting on a search warrant,” Sierra said.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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