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Should You Demand an OSHA Warrant?

TUESDAY, NOVEMBER 10, 2015

By Eric J. Conn


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Perhaps the most common question I am asked about OSHA inspections is:

When does it make sense (if ever) for an employer to demand an administrative warrant before permitting an OSHA compliance officer to proceed with a safety and health inspection?

First, it is important to understand that the Fourth Amendment of the U.S. Constitution does protect employers from unreasonable searches and seizures in the workplace just as it protects us all from such searches in our homes and vehicles. 

© iStock.com / eyjafjallojokul

The Constitution protects employers from unreasonable searches and seizures in the workplace just as it protects private citizens from such searches in our homes and vehicles.

That means that without the employer’s consent, OSHA may not proceed with an inspection at the workplace without an administrative inspection warrant (or the presence of an imminent hazard).

However, as an administrative warrant, the standard that applies to OSHA’s application for a warrant is much lower than when the police request a warrant to inspect your home. 

Rather than demonstrating criminal probable cause to the court, OSHA need only show that there is administrative probable cause that a violative condition will be found in your workplace. 

On top of the lower burden that OSHA must show, the agency gets a pretty healthy dose of deference from the courts. 

All of that is to say that successfully challenging a warrant is a steep uphill battle. That is not to say, however, that there are not good reasons to demand an inspection warrant.

Negotiate the Scope of the Inspection

We generally recommend that employers consent to OSHA inspections, but only after negotiating a reasonable scope to the inspection.

© iStock.com / andresr

The threat of demanding or challenging a warrant does give employers some leverage at the start of an OSHA inspection to negotiate about the proper scope of the inspection.

Although the notion that OSHA will be denied a warrant or that an employer will successfully quash a warrant is usually a long shot, the threat of demanding or challenging a warrant does still give employers some leverage at the start of an OSHA inspection to negotiate with the compliance officer or the area office about the proper scope of the inspection.

Such a negotiation will keep the inspection limited to the subject of an employee complaint, the location/equipment involved in an incident or the topics covered by a Special Emphasis Program that triggered the inspection.

If OSHA will not agree to limit the scope to the triggering event, then demanding and challenging a warrant may be appropriate, because the triggering event is most likely the sole basis for OSHA’s assertion of probable clause.

Have Your Inspection Rep Present

Another circumstance where 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 the employer’s chosen inspection representative to be present at the worksite to participate in the inspection. 

Many of our clients have designated their companies’ corporate safety director, director of operations, or outside OSHA counsel as the only acceptable inspection representative for the company. 

© iStock.com / Sergei Butorin

Another circumstance where demanding a warrant may be appropriate is if OSHA is not willing to wait a reasonable amount of time for the employer’s chosen inspection representative to be present.

For employers with multiple locations around the country, it may not be feasible for the designated inspection representative to arrive within an hour or two at the location where an unannounced OSHA inspection is set to begin. 

My firm will often ask OSHA to wait to start the inspection until much later in the day when the company’s designated inspection representative can arrive, or even to come back the next day when the representative is able to travel from out of town to get to the site. 

This often triggers a kerfuffle, but with the threat of demanding a warrant—and offering other practical solutions (e.g., allowing the compliance officer to begin reviewing relevant records until the representative arrives)—an agreeable arrangement short of demanding a warrant can usually be found. 

If not, demanding the warrant will ensure the inspection does not begin before your representative has ample time to arrive.

Make a Rational Decision

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. 

There is a very real risk of retaliation by OSHA for demanding a warrant, but sometimes that risk outweighs the harm that could be done by allowing an inspection to proceed without delay, without limits, and without your chosen inspection representative.

ABOUT THE BLOGGER

Eric J. Conn

Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Group. His practice focuses exclusively on issues involving occupational safety and health law. OSHA Watch offers general information but should not be construed as legal advice. Employers are always advised to seek appropriate counsel for individual issues. Contact Eric.

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Tagged categories: Health and safety; Inspection; OSHA; Safety

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