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COMMENTARY: That next OSHA investigation might not be so bad

When it comes to the federal government and workplace safety, there usually isn’t a lot of good news.

But a federal appeals court just issued a ruling limiting the Occupational Health and Safety Administration’s ability to expand a post-accident safety investigation beyond its original and intended scope. Although the ruling comes from another part of the country, employers in Wisconsin and other places can hope that federal courts will take note of this ruling and apply it elsewhere.

What do you do when OSHA wants more?

Let’s suppose an accident occurred at your workplace tomorrow. Pretty quickly, you’d receive a visit from OSHA representatives. Once they arrived, they might tell you they weren’t satisfied with inspecting just the site of the accident. Instead, they might want to look at your entire operation, from top to bottom. Would they have the legal right to do that? That’s the very question answered by United States v. Mar-Jac Poultry Inc.

The case dates to Feb. 3, 2016, when an employee of Mar-Jac Poultry was injured at the company’s Georgia processing plant while trying to repair an electrical panel. Because the employee was sent to the hospital, Mar-Jac reported the injury to OSHA.

Within a few days, OSHA had an inspection team at the plant. During their investigation, OSHA officials found a few possible violations that appeared related to the accident; in normal situations, that would have been the end of it.

But the inspectors also decided to review Mar-Jac’s OSHA 300 logs going back three years, eventually concluding that information they discovered suggested there might have been further violations. Citing reports of other injuries, the inspectors said Mar-Jac appeared to be not meeting various standards meant to mitigate ergonomic, biological and struck-by hazards. OSHA then sought permission to go beyond the site of the initial accident and inspect the entire plants for hazards. Mar-Jac refused, prompting OSHA to go to court to resolve the dispute.

In March 2016, OSHA asked a federal judge for a warrant allowing it to expand its inspection to Mar-Jac’s entire plant. The agency argued that inspectors had themselves witnessed hazards that appeared related to the electrical accident, and their a review of the company’s OSHA 300 logs had revealed the presence of various sorts of hazards commonly found poultry-processing plants. The judge disagreed, finding the company’s OSHA 300 logs gave no probable cause to justify expanding the scope of the inspection.

Appeals court: no probable cause existed

In a decision handed down in October, the U.S. Court of Appeals for the 11th Circuit affirmed the lower court’s decision to block an expansion of the requested inspection.

The appeals court’s ruling had a few notable aspects to it. The court first took exception to OSHA’s argument that the recording of various injuries in Mar-Jac’s OSHA 300 logs both revealed the presence of various hazards at the company’s plant and suggested there might be further violations of federal workplace-safety law. Saying that idea of “hazards” and “violations” should be kept distinct from each other, the court concluded that the mere presence of a hazard should not necessarily mean there’s also a violation.

Second, and perhaps more importantly, the 11th Circuit held that a record of injuries in OSHA 300 logs is not enough in itself to suggest that an employer had probably violated the Occupational Safety and Health Act. The 11th Circuit rightly noted that Mar-Jac’s logs, which OSHA had argued recorded enough injuries to show that Mar-Jac was failing to take adequate steps to prevent workplace mishaps, provided little detail about actual causes. It concluded by saying that the “existence of injuries does not necessarily mean that the injuries were caused by OSHA violations, or justify the issuance of an administrative warrant for evidence of OSHA violations.”

Takeaways for employers

The Mar-Jac decision is a big victory for employers for two main reasons. First, it shows that the mere presence of a hazard does not necessarily mean there has been a violation and that inspectors should be careful to remember that hazards are distinct from violations. Second, the ruling means OSHA may not be able to cite injuries recorded in OSHA 300 logs as a sufficient reason to expand the scope of an inspection. Rather, before going beyond taking such a step, OSHA may be required by a court to show that such records suggesting not only that hazards exist at a particular workplace but also that violations are likely to be found as well.

This now case applies only to employers in the southeastern part of the country. But its reasoning appears sound, and it would not be surprising to see a courts elsewhere coming to the same conclusions. A company now facing an OSHA request for permission to expand an inspection should contact counsel to learn of its legal rights and consider an appropriate response.

Rich Meneghello is a partner in the Portland, Oregon,-based office of Fisher Phillips, a national firm that represents employers’ interests in all aspects of workplace law. Call him at 503-205-8044 or write to him at rmeneghello@fisherphillips.com, or follow him on Twitter – @pdxLaborLawyer.

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