That next OSHA investigation might not be quite so bad


By Rich Meneghello
BridgeTower Media Newswires

When it comes to the federal government and workplace safety investigations, there usually isn’t a lot of good news. But a federal appeals court just issued a ruling that limits OSHA’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 can hope that our federal courts will take note of this ruling and apply it in our own backyard in the near future.

What do you do when OSHA wants more?

Let’s say an accident occurs at your workplace tomorrow. Within a short period of time, you may very well receive a visit by representatives of the Occupational Safety and Health Administration (OSHA). Once they arrive at your facility, however, imagine if the investigators tell you they aren’t satisfied with inspecting just the specific area where the accident took place. Instead, they want to expand their inspection to cover your entire facility, top to bottom. Can they do that? That’s the very question answered by United States v. Mar-Jac Poultry Inc.

The case began on Feb. 3, 2016, when a Mar-Jac Poultry employee was injured at the company’s Georgia processing facility while trying to repair an electrical panel. Because the employee was hospitalized, Mar-Jac reported the injury to OSHA. The agency sent an inspection team to the facility within a few days. During the investigation, OSHA found a few potential violations relating to the accident during its limited inspection. In normal situations, that would have been the end of it.

But the inspectors also reviewed Mar-Jac’s OSHA 300 logs for three years, and arrived at the conclusion that the information in the logs suggested additional possible OSHA violations. They pointed to other injuries that had been reported and claimed that they could reveal improper standards as they relate to ergonomic hazards, biological hazards, struck-by hazards, and more. Citing these additional factors, OSHA requested to inspect the entire facility for hazards and not just the area of the accident. Mar-Jac refused to permit an expanded inspection, and OSHA went to court to resolve the dispute.

In March 2016, OSHA sought a warrant from a federal judge to expand the inspection to Mar-Jac’s entire facility, contending that probable cause existed for such an expansion. It noted that agency inspectors had personally witnessed hazards related to the electrical accident, and a review of the OSHA 300 logs showed hazards common to poultry processing facilities. But the judge disagreed, determining that probable cause did not exist to expand the scope of the inspection based upon the injuries reported in the OSHA 300 logs.


Appeals court: no probable cause existed

In its Oct. 9 decision, the U.S. Court of Appeals for the 11th Circuit affirmed the lower court’s decision to block an expansion of the inspection. There are a few important aspects to this decision. First, even though OSHA argued that the existence of injuries on the OSHA 300 logs indicated the presence of hazards at the worksite, which in turn indicated the possibility of violations of federal workplace safety law, the appeals court held that “hazards” and “violations” are distinct concepts. The existence of a hazard does not necessarily establish a violation, it said.

Second, and perhaps more importantly, the 11th Circuit held that the existence of recorded injuries on OSHA 300 logs does not automatically demonstrate that the employer likely violated the Occupational Safety and Health Act. Even though the agency argued that the number of injuries recorded in the OSHA 300 logs showed that Mar-Jac was failing to take adequate steps to prevent workplace injuries, the 11th Circuit correctly noted that OSHA 300 logs provide little detail about the cause of the injury. 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.”

Additionally, the 11th Circuit found that whether injuries recorded in OSHA 300 logs can lead to reasonable suspicion to support a warrant based upon the logs is a fact-intensive inquiry because the logs “can be relevant to whether hazards exist.” In the Mar-Jac case, however, the court found that the logs did not support such a finding. For example, at this specific worksite, the court found evidence of 25 recorded injuries related to possible ergonomics hazards over the course of three years. In a facility of 1,112 employees, however, this did not create reasonable suspicion that ergonomics violations were likely to exist (but might do so in a much smaller worksite).


Takeaways for employers

The Mar-Jac decision is a significant victory for employers for two main reasons. First, the existence of a hazard does not necessarily imply the existence of a violation, so be sure not to confuse the two.
Second, OSHA might not be able to expand an inspection simply because of injuries recorded in OSHA 300 logs. Rather, a court might force OSHA to provide sufficient evidence that the recorded injuries demonstrate not only that hazards exist at the workplace, but that violations are likely to be found as well.

At this point, this 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 other courts apply the same logic.


Rich Meneghello is a partner in the Portland, Oregon, office of Fisher Phillips, a national firm representing employers’ interests in all aspects of workplace law. Contact him at rmeneghello@, or follow him on Twitter at @pdxLaborLawyer.