“I Hear You Knocking . . . But You Can’t Come In!”

Check out this months article from Employment Law Monthly, written by Melanie D. Lipomanis, an Associate on the Employment Team at Porzio, Bromberg & Newman, P.C.

I Hear You Knocking . . . But You Can’t Come In!

The time to plan and implement procedures for handling a worksite inspection is definitely not when the Occupational Safety and Health inspector, known as a compliance safety and health officer (“CSHO”), is knocking on the door. Frequently, employers permit CSHOs to expand their inspection to areas in the workplace that are not specifically related to the injury or illness under investigation. Since the inspectors can cite any violations they see in “plain view” regardless of the purpose of the inspection, permitting them unfettered access to the entire worksite can lead to additional citations and penalties.

In United States v. Mar-Jac Poultry, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that OSHA could not expand the scope of a narrow injury-based inspection to a facility-wide general inspection based on the employer’s OSHA 300 injury and illness logs.

In her article she lays out the Facts, Impact of Mar-Jac, and Employer Takeaway from this case.

Facts: Mar-Jac operates a poultry plant in Georgia. In 2016, an employee was hospitalized after being burned by an electrical arc flash. The employer reported the incident as required under OSHA regulations. OSHA’s initial inspection uncovered the potential for other electrical hazards in the poultry plant. OSHA sought to expand the scope of the inspection to cover the entire facility and search for additional hazards in the plant that had no relation to the electrical accident whatsoever, including ergonomics, biological hazards, and slips/falls.

The employer consented to an inspection of the specific worksite and tools involved in the electrical accident, but refused to allow inspection of any additional areas or hazards. OSHA applied for and was granted a warrant to inspect the entire facility. Mar-Jac filed an emergency motion to quash the warrant.

Procedurally, in a warrant application, OSHA must establish probable cause by providing reasonable suspicion that a violation exists. OSHA argued that Mar-Jac’s OSHA 300 injuries and illnesses logs created reasonable suspicion of hazards which suggested the existence of violations. The Eleventh Circuit rejected this argument, holding that a recorded injury or illness does not by itself demonstrate that it resulted from an OSHA violation. The Court distinguished hazards from violations, and explained that the existence of a hazard does not necessarily establish the existence of a violation. OSHA must show a violation to demonstrate reasonable suspicion in a warrant application.

Impact of Mar-Jac: Mar-Jac reinforces that there are limits on OSHA’s inspection authority. OSHA cannot expand its inspection of a facility based solely on the existence of an injury or hazard. Rather, OSHA must proffer additional evidence to support its reasonable suspicion of a violation. Although Mar-Jac is an Eleventh Circuit decision and not binding precedent in other jurisdictions, it does offer a valuable lesson for employers to reasonably limit their consent for inspection to the specific area or tools involved in the reported injury or illness.

Employer Takeaway: Employers are entitled to Fourth Amendment protection against unreasonable searches and seizures of their workplaces, including inspections by OSHA. Accordingly, a CSHO must obtain either the employer’s consent or an inspection warrant prior to any inspection of the employer’s premises. Frequently, the CSHO will arrive at the worksite unannounced, and unarmed with a warrant. Employers do not want employees to make an all too common mistake of throwing the company doors wide-open when they absolutely have no obligation to do so. The initial contact is the first opportunity the employer has to negotiate with the CSHO to limit the scope of the inspection and control how the inspection process will be carried out. This is where the employer’s advanced planning really will pay off.

Section 8(a) of the OSH Act provides: “OSHA may inspect at reasonable times any workplace during regular working hours and at other reasonable times within such reasonable limits and in a reasonable manner.” During the initial consultation, the employer should try to come to terms with the CSHO regarding the reasonableness of the scope and limitations of the inspection, i.e., define the equipment, and/or area of the worksite that is to be inspected by the CSHO. Once that is established, the employer should confine the CSHO’s access and travel routes to only the areas within the scope of the inspection. The CSHO’s physical access to the premises should be with a management escort only, including the company compliance officer during any walk around and sample collection activities.

The CSHO has the right to interview employees as part of any inspection, however, the employer is entitled, and should insist, to be present for the interviews of any management employees.

Click here for the complete article.

 

 

“Electrical arc formed…. and electrocuted him”

Man electrocuted in accident in Fermont

CNESST, the provincial workplace, health and safety commission, has opened an investigation.

A 62-year-old man was electrocuted Saturday morning while trying to remove a backhoe that got stuck in some electrical wires in Fermont, a town on the North Shore near the border with Labrador.

The backhoe slid down a slope on Highway 389, coming to a stop near the wires, according to the Sûreté du Québec.

The man was in the process of retrieving the backhoe when an electrical arc formed from the wires and electrocuted him.

He collapsed in the snow and was pronounced dead after being transported to hospital.

Employees from Hydro-Québec and Transports Québec arrived to secure the area.

Click here for the article from the Montreal Gazette

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OSHA investigating incident involving utility worker in Texas

OSHA investigating incident involving utility worker in Texas

The United States Department of Labor is investigating a workplace accident involving a utility worker in Brazos County.

An employee of Echo Powerline doing contract work for Bryan Texas Utilities (BTU) was shocked while working on utility lines south of College Station, TX on Wednesday. He was taken by a medical helicopter to a hospital following the accident. His condition is unknown at this time.

The Occupational Safety and Health Administration (OSHA) confirmed it is investigating the incident. Officials won’t release more details until the investigation is completed.

Click here for more from KBTX-TV

OSHA cites solar contractor almost $40,000 after fatal electrocution of one of their workers

OSHA cites solar contractor almost $40,000 after fatal electrocution of one of their workers

The agency said Wednesday that it cited Power Factor LLC for four serious violations after the employee, who has not been identified, died July 24, 3018, while installing solar panels at the base. In their findings, the agency says the employee was hoisting a metal rail that came into contact with overhead power lines.

OSHA cited the company for allowing employees to work too closely to electrical power circuits without de-energizing and grounding the circuits, or guarding the circuits using insulation or other means. Officials also said the company didn’t regularly inspect the job site or train workers to recognize and avoid hazards.

“This tragedy could have been prevented if the employer had complied with electrical standards that require maintaining a safe distance from unprotected energized power lines, training employees, and providing personal protective equipment,” said OSHA Wichita Area Director Ryan Hodge.

Click here to read more directly from the OSHA news release