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August 26, 2021

Demanding A Warrant From OSHA? Think Twice.

Occupational Safety and Health Administration, Arizona Division of Occupational Safety and Health (ADOSH), and California Occupational Safety and Health Administration (Cal/OSHA); three agencies, one mission: improving and protecting the health and safety of workers across all industries. Each of these three agencies (collectively, “OSHA”) sets health and safety standards, provides outreach, education, permitting, licensing, and certification.

When faced with an unannounced OSHA workplace inspection, employers may – without risk of penalty:

  • Ask for and receive proper identification from an inspector prior to a workplace inspection.
  • Refuse to allow an inspector access without a warrant.
  • Contest a warrant.
  • Limit the scope of an inspection to what is contained in the warrant.
  • Accompany the inspector during the inspection.
  • Have an opening and closing conference.
  • Contest a fine.

But should an employer exercise these rights? Here are a few things to consider:

Demand = Delay. Inspections are premised on the (low threshold) reasonable belief that a violation will be discovered. This standard is easily met if a workplace injury/death has been reported, a referral has been made to OSHA concerning a possible hazard, or a complaint has been filed. Inspectors will not be put off or dissuaded by a demand to produce a warrant. There is also the possibility that such a request will pique the interest of inspectors and result in a more thorough inspection.

Warrant = Broader Scope. An inspector who appears without a warrant provides the employer with an opportunity to negotiate regarding the proposed scope of the inspection. Requesting a warrant may inadvertently result in a broadening of the scope of the inspection. For example, out of an abundance of caution or based on a belief the employer has something to hide, an inspection triggered by a complaint concerning a specific incident could easily be expanded by a reviewing Judge to include other locations or an entire facility.

Demand = More Time. As discussed above, demand equals delay, which might not always be such a bad thing; especially when the inspection comes as a surprise. Exercising your right to request a warrant can give you additional time to review training records and to conduct your own site inspection(s). It also provides an opportunity to consult with legal counsel. 

Negotiation = Compromise. Compromise is always an option. As discussed above, demanding a warrant may create more problems than it solves, but opening a dialogue with the inspector may allow you to better manage your risk. Information is key. Instead of sending the inspector off to procure a warrant ask what prompted the inspection (e.g., injury/fatality, random inspection, complaint). Once you determine the basis for the inspection, initiate a dialogue about limiting the extent of the inspection to just that reason (e.g., if the reason was that an employee gave a complaint about a particular guard on a specific machine, try to limit the inspection to that machine). If you feel representation is necessary, simply ask for a short delay to allow you to contact your legal counsel or designated representative, or respectfully suggest the inspection take place on another day.

Keep in mind that inspectors will almost always review required safety posters, safety records (including training records); and, in California, the employer’s Injury & Illness Prevention Program.

Given the unpredictable nature of OSHA inspections it is best to consider all available options and take the approach that will help minimize overall risk and convey a cooperative (within reason) attitude.

Employers seeking additional information or guidance on OSHA, Cal/OSHA or ADOSH inspections should contact Western Growers.