In the effort to avoid writing yet another blog entry on COVID-19 related material, I am writing to inform our readers what they should do if an investigator from the Occupational Safety and Health Administration (OSHA) appears on at a jobsite.
As you likely know, OSHA recently released a rule mandating that employers of 100 or more employees require all employees to be vaccinated against COVID-19 or subject to weekly testing. Our Randi Hyatt blogged about the final rule on November 4, 2021. The implementation of the mandate was immediately challenged, and there are currently 34 lawsuits pending in all 12 U.S. appellate circuits. The Fifth Circuit (covering Texas, Louisiana and Mississippi) has imposed a stay on the implementation of the vaccine mandate, preventing it from becoming effective. The Sixth Circuit was selected as the Court responsible to hear the consolidated lawsuits and will determine if the mandate can go into effect. Meanwhile, OSHA has announced that it will abide by the Fifth Circuit’s order and will not enforce the mandate pending the future court decision; although the Department of Justice has requested the Sixth Circuit vacate the stay while litigation is pending.
Because of the mandate, employers are now confronted with preparing for the possibility of an OSHA inspection and investigation. Whether or not this mandate goes into effect, employers need to know what they should do if an OSHA inspector or compliance officer comes to the workplace: ask for a warrant.
The Fourth Amendment of the United States Constitution protects individuals against unreasonable searches and seizures by government actors without a warrant or probable cause. This protection extends to government agencies and their inspections of businesses. In Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) the Supreme Court of the United States held that OSHA inspectors may not conduct warrantless searches of business premises. The decision in Marshall v. Barlow explicitly stated that commercial businesses are protected in the same category as private homes, and requiring OSHA inspectors to obtain warrants provided no serious burden or otherwise made inspections less effective.
Whether or not the vaccine mandate goes into effect, employers should know that OSHA may not inspect a business without a warrant. An inspection would include records and documentation. In order to obtain a warrant, OSHA will need administrative probable cause that a condition exists in violation of OSHA’s safety standards.
If your business is facing any issue with OSHA, whether related to COVID-19 or not, the attorneys at Kollman & Saucier are prepared to offer you guidance.