Occupational Safety and Health Administration (OSHA) compliance officers typically arrive without advance notice, which is enough to raise alarm bells in the minds of many employers. You might know why they’re there. Or you might not have any idea. Whatever the situation, step one should be to ask yourself: Should I demand the inspector come back with a warrant?
I Hear You Knocking, 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 the need for a warrant. And in many circumstances, consenting to the inspection may be the best approach. So before adopting a film-noir accent and demanding the inspector “come back with a damn warrant,” here are four things you should consider.
Demanding warrant only prolongs the inevitable. Demanding a warrant won’t prevent OSHA from carrying out its inspection; it temporarily pushes it back. To obtain a warrant, compliance officers need to establish probable cause for the search. Probable cause in this context is a low threshold. After all, the inspectors need to show only that they have a reasonable basis to believe they’ll discover a violation in your workplace. The standard is easily met, for example, if (1) you’ve 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 hazard.
In short, demanding a warrant won’t make the compliance officers go away for good. They’ll obtain a warrant and be back. And when they do return, warrant in hand, they might look more closely for violations, believing you have something to hide.
Warrant will specify inspection’s scope, which could be broader than you had in mind. By demanding a warrant, you lose an opportunity to negotiate with the compliance officer for a limited scope to the inspection. The warrant itself will state how broadly or narrowly the compliance officer may search.
You might get lucky with a narrowly drafted warrant limiting the scope of the search to a specific location. But you could just as easily get unlucky. Judges have issued warrants authorizing a “wall-to-wall” inspection of an employer’s entire facility, even if the search was triggered by a single employee complaint concerning a specific location. In short, it’s a gamble, and demanding a warrant could buy you more trouble than you bargained for.
Demanding warrant does give you time to prepare for inspection. Though demanding a warrant won’t prevent the inspection entirely, you’ll likely get at least a couple days before the compliance officer returns. If you choose to insist on the warrant, take the opportunity to prepare for the inspection by self-auditing your policies and employee training.
Conduct your own walkthrough and identify potential violations with your designated safety manager and/or safety consultant. If you’re especially concerned, consider hiring an attorney and informing them that you’ve demanded a warrant and would like the attorney to be available for OSHA’s inspection.
By negotiating with compliance officer, you might get the best of both worlds. If you’re worried demanding a warrant will create more trouble than it’s worth, and it often does, you can still give yourself time to prepare and limit your risk of liability by negotiating with the OSHA compliance officer before the inspection.
When the compliance officer comes knocking, politely ask for the reason for the inspection. Is it related to a reported workplace injury or fatality? Is it a random inspection? Is it related to an employee complaint? If so, ask for a copy of the complaint.
Once you know the reason for OSHA’s visit, you can propose 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 also can ask the officer to wait until your chosen inspection representative and attorney are on-site before the inspection begins. Those individuals can help limit your risk of liability during the inspection, and requesting their presence provides a little extra time to prepare for the event.
When OSHA comes knocking, we generally recommend consenting to an inspection after negotiating its scope and asking for sufficient time for your safety inspection representative and/or attorney to arrive. But if you need additional time to prepare for the visit, consider asking the compliance officer to obtain a warrant, always politely of course.