By Robert G. Chadwick, Jr.,  Partner, Freeman Mathis & Gary, LLP.

The U.S. Supreme Court in Marshall v. Barlows, Inc., 436 U.S. 307 (1978) determined that, absent consent or an application exception, an OSHA inspection can only be conducted in accordance with a search warrant signed by judge. Applicable exceptions include the following: (1) the worksite is located on public property, (2) the worksite can be observed without entry on to the worksite, (3) consent to an inspection has already been provided by a person or entity which owns or controls the property on which the worksite is located, (4) emergency conditions exist which do not allow time to obtain a search warrant, (5) OSHA has already been provided access to the worksite, or (6) the worksite is closely regulated.

Determining that an employer has the right to refuse entry if OSHA arrives without a search warrant, however, does not necessarily answer the question of whether this right should be exercised. The reality for the employer is that refusing entry will likely not avoid an inspection altogether.  An employer which refuses entry should expect OSHA to return promptly with a search warrant. The only likely benefit to be obtained by demanding a search warrant, therefore, is a short delay of the inspection.

Under some circumstances, a delayed inspection in accordance with a search warrant may be the best option for an employer. There are other circumstances, however, where an employer is better served by cooperating with OSHA and allowing an inspection to proceed immediately without a search warrant.  Determining which circumstance is present upon OSHA’s arrival must generally be made quickly with a careful analysis of (1) the reasons to allow an inspection without a warrant, and (2) the reasons to refuse an inspection without a warrant.

Reasons to Allow an Inspection Without a Warrant

1. Although a delay may allow time to correct hazards at a worksite, citations for those hazards will not necessarily be avoided. Since OSHA will have the opportunity to interview employees as part of the inspection, it should be expected that the employees will be asked about any hazards corrected during the delay.
2. Requiring a search warrant may send the message (accurate or inaccurate) that the employer has something to hide or is unconcerned with employee safety. Such message may impact OSHA’s actions going forward including (a) the conduct of the OSHA inspection itself, (b) the number and severity of citations, and (c) the willingness of the Area Director to reduce proposed penalties and abatement dates during informal settlement discussions. Although no OSHA policy officially endorses retaliation against an employer who refuses an inspection without a search warrant, some studies have found that the risk of citations and penalties is significantly lower when an employer allows an OSHA inspection without a warrant.
3. Refusal of entry may be a one-time option for the employer which will prompt OSHA to seek search warrants before future inspections.
4. In most jurisdictions, the scope of a permissible inspection in a search warrant is the product of an ex parte communication between OSHA and a judge without any input from the employer. Although a programmed inspection will necessarily encompass an employer’s entire worksite, an inspection to investigate a complaint, referral, fatality, hospitalization or external observation of a worksite, should generally only encompass that portion of the worksite necessary to complete the investigation. Without input from the employer, the risk of a search warrant authorizing an overly broad investigative inspection can be substantial. Accordingly, there may be circumstances where an agreement by the employer as to the permissible scope of inspection may be preferable to the risk presented by demanding a search warrant.

Reasons to Refuse an Inspection Without a Warrant

1. Since many OSHA citations are based upon faulty paperwork, a delayed inspection may provide an opportunity for management to organize (but not falsify) documents which will necessarily be reviewed in conjunction with an inspection.
2. There may be circumstances which dictate an immediate defensive posture in anticipation of significant citations for willful, repeat or criminal violations. Such circumstances include (a) the prior history between the employer and OSHA, (b) the reasons for the inspection, and/or (c) the condition of the worksite.
3. An invalid basis for the inspection, which OSHA is unwilling to admit, may be a reason to refuse entry and force the agency to justify the requested inspection to a judge. Examples of invalid bases for an inspection include (a) a defective formal employee complaint, or (b) an employer subject to an available exemption.
4. There may be unique and rare circumstances where the timing of an inspection would result in a disruption of the employer’s operations. If OSHA is unwilling to reschedule the inspection for a different time, the opportunity to reschedule the inspection to a less disruptive date may be a reason to refuse entry.
5. If an agreement cannot be reached as to the permissible scope of an investigative inspection, the employer may have no meaningful choice other than to opt for an ex parte search warrant. For instance, if OSHA demands an inspection of the employer’s entire worksite in response to an employee complaint regarding one small area of the worksite, and is unwilling to discuss a more limited inspection, demanding a search warrant may present the only chance for limiting the scope of the inspection.

In the final analysis, there is no universal answer to the question of whether a search warrant should be demanded by an employer before permitting an OSHA inspection. What is clear is that the decision should be (a) an informed one, and (b) made by a qualified representative of the employer familiar with the various risks and benefits of a “yes” or “no” answer.