4 things to consider before requiring an OSHA mandate

Occupational Safety and Health Administration (OSHA) compliance officers usually arrive without notice, which is enough to sound the alarm bells in the minds of many employers. You might know why they are there. Or maybe you just have no idea. Whatever the situation, the first step should be to ask yourself: should I demand that the inspector come back with a warrant?

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I hear you hit, but you can’t come in

That’s right! You have a constitutional right under the Fourth Amendment to require OSHA compliance officers to obtain an administrative warrant before entering your premises for an inspection. Of course, you can (and most employers do) consent to an inspection without needing a warrant. And in many circumstances, consent to inspection may be the best approach. So before adopting a film noir accent and demanding that the inspector “come back with a damn warrant,” here are four things you should consider.

Asking for a warrant only prolongs the inevitable. Requiring a warrant will not prevent OSHA from performing its inspection; he temporarily pushes him away. To obtain a warrant, compliance officers must establish the probable cause of the search. The probable cause in this context is a low threshold. After all, inspectors only need to show that they have reasonable grounds to believe that they will discover a violation in your workplace. The standard is easily met, for example, if (1) you have reported a workplace injury or death, (2) an employee has filed a complaint, or (3) another federal or state agency or has referred OSHA to a possible danger.

In short, requiring a warrant will not make compliance officers leave for good. They will get a warrant and come back. And when they come back, warrant in hand, they might take a closer look at the violations, believing you have something to hide.

The terms of reference will specify the scope of the inspection, which may be broader than what you had in mind. By requiring a warrant, you lose an opportunity to negotiate with the compliance officer for a limited scope of the inspection. The warrant itself will indicate the extent to which the compliance officer can conduct a search.

You might get lucky with a tightly drafted warrant limiting the scope of the search to a specific location. But you might as well be unlucky. Judges issued warrants authorizing an “end-to-end” inspection of an employer’s entire facility, even though the search was triggered by a single complaint from an employee about a specific location. In short, it’s a gamble, and requiring a warrant could cause you more trouble than you expected.

A demanding mandate gives you time to prepare for the inspection. While requiring a warrant doesn’t completely prevent the inspection, you’ll likely have at least a few days before the compliance officer returns. If you choose to require the warrant, take the opportunity to prepare for the inspection by reviewing your policies and employee training yourself.

Perform your own review and identify potential breaches with your security officer and / or designated security consultant. If you are particularly concerned, consider hiring a lawyer and informing them that you have applied for a warrant and want the lawyer to be available for OSHA inspection.

By negotiating with the compliance officer, you could get the best of both worlds. If you’re worried that requiring a mandate creates more problems than it’s worth, and often is, you can always give yourself the time to prepare and limit your liability risk by negotiating with the responsible for OSHA compliance prior to inspection.

When the compliance officer knocks on the door, politely ask for the reason for the inspection. Is it related to a reported workplace injury or death? Is it a random inspection? Is it related to an employee complaint? If so, request a copy of the complaint.

Once you know the reason for OSHA’s visit, you can suggest a reasonable scope for the inspection. Ask the officer to limit the scope to the event triggering the inspection, for example, the subject of an employee complaint, the location of an injury, or the equipment involved in an accident.

You can also ask the agent to wait until the representative and lawyer of your choice are on site before the inspection begins. These people can help limit your risk of liability during the inspection, and requesting their presence provides a little more time to prepare for the event.

Final result

When OSHA knocks on the door, we generally recommend consenting to an inspection after negotiating the scope and requesting sufficient time for your safety inspection representative and / or attorney to arrive. But if you need more time to prepare for the visit, consider asking the compliance officer for a warrant, always politely of course.

Emilie Matta is a lawyer in labor law within the law firm Foulston Siefkin LLP in Wichita, Kansas. You can reach her at [email protected]

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