A Blow to OSHA Enforcement

A recent decision by the U.S. Court of Appeals for the 11th Circuit has dealt a serious blow to OSHA’s long-standing authority in determining the appropriate scope of safety and health inspections.

Richard Fairfax
November 19, 2018

Traditionally, OSHA has conducted two classes of inspections: comprehensive and partial inspections. A comprehensive inspection is one that covers most, if not all, a facility, whereas a partial inspection is limited to those items or areas in a facility addressed in a complaint. For example, a compliance officer may be assigned a complaint inspection with a scope limited to the items listed on the complaint, making it a partial inspection. However, if the compliance officer observes other hazards in the facility or notices injuries listed on the OSHA 300 logs in other parts of the facility after entering the site, the compliance officer, with approval from the OSHA Area Office, can expand the scope of the inspection. This inspection expansion can make it a comprehensive inspection. In some cases, the inspection scope is expanded before the compliance officer ever leaves the Area Office. For example ,if it is noted that the establishment is also on the list for inspection under a National or Local Emphasis Program (NEP or LEP), the scope of the inspection can be expanded by the Area Office prior to initiating the complaint inspection, thus making it a comprehensive inspection.

However, the appellate court’s Oct. 9 decision in U.S. v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018) may have changed this agency procedure. In this case, an employee of Mar-Jac Poultry was injured and consequently hospitalized. The company notified OSHA as required under 29 CFR 1904.39, and OSHA initiated an inspection. Once the inspection was initiated, OSHA sought to expand its scope based upon the agency having an NEP for poultry processing and the fact that a review of the company’s recordkeeping forms (OSHA 300 Logs) showed six injuries recorded for what the agency considered “common hazards.” Mar-Jac allowed a partial inspection of the original inspection trigger but denied OSHA’s request to expand the scope of the inspection. Because of this denial by Mar-Jac, OSHA sought and received a warrant allowing it to expand the inspection scope. The judge apparently agreed with OSHA’s long-standing position on inspection expansion based upon the OSHA 300 log information and the fact that the company was already on the targeting list for a NEP inspection.

Mac-Jar then filed a motion to quash the warrant obtained by OSHA and its request was granted. The magistrate judge found that OSHA did not have reasonable suspicion regarding the other hazards and that Mar-Jac had not been selected based on neutral selection criteria. 

In response, OSHA appealed the magistrate’s decision to the U.S. District Court for Northern Georgia, which upheld the decision to quash the warrant. OSHA then appealed the decision to the 11th Circuit, which upheld the lower court’s ruling. The appellate court basically held that entries in a 300 log fail to establish reasonable suspicion of the existence of violations. 

I believe this is a major decision against the agency as OSHA policy has always allowed the expansion of an inspection based upon the company being on a NEP or LEP or other inspection targeting list and/or on injuries observed in the OSHA 300 logs. At this point, the decision is very new, and it is not known if OSHA will appeal it further or take any other action. It is certainly a blow to the inspection authority OSHA has always asserted in conducting health and safety inspections.

Richard Fairfax

Richard Fairfax is a subject matter expert and principal consultant for NSC. Prior to that, he was director of enforcement programs and deputy assistant secretary for OSHA.

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