OSHA’s Inspection Powers Have Limits

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OSHA inspection Alabama employment law
OSHA inspections have limits.

The United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has become more aggressive in recent years.  OSHA inspectors frequently seek to push the limits of their right to inspect employer premises.  A recent case from the Eleventh Circuit Court of Appeals imposes some limits on those inspection rights.  See USA v. Mar-Jac Poultry, Inc., No. 16-17745, 2018 WL 4896339 (11th Cir. Oct. 9, 2018).

A Mar-Jac employee was severely burned on February 3, 2016 when he attempted to repair an electrical panel using a non-insulated screwdriver.  Mar-Jac reported that accident to OSHA, and inspectors arrived at Mar-Jac’s facility on February 8, 2016.  The inspectors asked to inspect not only the hazards involved in the accident, but also to conduct a comprehensive inspection of the entire facility.  When Mar-Jac refused that comprehensive inspection, OSHA asked a federal court to issue a warrant permitting inspection of the facility.  When Mar-Jac received the warrant, it filed an emergency motion to quash (or stop) the warrant and inspection.  The court reviewing the motion to quash agreed with Mar-Jac and prevented the expanded inspection.  OSHA appealed to the Eleventh Circuit.

Importantly, the Mar-Jac case involved an “unprogrammed” inspection by OSHA.  OSHA has created “emphasis programs” in industries that pose a high risk to workers, and randomly inspects facilities under those programs.  If Mar-Jac involved a random, programmed inspection, the result would probably have been different.

“The scope of an unprogrammed inspection must bear an appropriate relationship to the violation alleged by the evidence.”  Mar-Jac, 2018 WL 4896339 at * 4.  “When nothing more is offered than a specific complaint relating to a localized condition, probable cause exists for a search to determine only whether the complaint is valid.”  Id.

Nevertheless, the Eleventh Circuit recognized that an expanded, full-facility inspection may be warranted in some circumstances:  “it is conceivable that a specific violation plus a past pattern of violations may be probable cause for a full scope inspection.  In addition, a specific complaint may allege a violation which permeates the workplace so that a full scope inspection is reasonably related to the complaint.”

OSHA tried to argue that a pattern of violations existed which supported its request for a full-facility inspection.  In particular, it relied upon Mar-Jac’s OSHA 300 logs to argue that the facility had a pattern of OSHA violations.  But, OSHA 300 logs do not necessarily record OSHA “violations.”  Instead, they merely contain a listing of work-related injuries and illnesses.   And, the Eleventh Circuit stressed that the mere existence of workplace hazards would not support a warrant:  “The existence of a ‘hazard’ does not necessarily establish the existence of a ‘violation,’ and it is a ‘violation’ which must must be established by reasonable suspicion in the application [for a full-facility inspection warrant].”

Ultimately, the Eleventh Circuit concluded that OSHA did not provide enough evidence of OSHA violatoins to justify a full scope inspection of the facility.  And, that is really the lesson of Mar-Jac.  If an employer operates a facility that is generally free of OSHA violations, it may be possible for that employer to resist a request by OSHA for an unprogrammed full-facility inspection.

Post-Accident Drug Testing: OSHA “Clarifies” Its Position

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OSHA drug testing Alabama Employment Law
OSHA has “clarified” its position, and recognized the importance of post-accident drug testing policies.

Two years ago, I discussed difficulties that could be caused by new OSHA regulations on post-accident drug testing.  Here’s a link to that article:  Conflicts Between Alabama Law and OSHA Drug Testing Rules.  In that article, I noted that OSHA took the position that policies requiring “blanket post-injury drug testing policies deter proper reporting,” and are unreasonable.  Last week, OSHA issued a “clarification” of its position, and alleviated many of the concerns noted in my original article.  Here’s a link to the clarification:  OSHA Clarification on Post-Incident Drug Testing.  In contrast to 2016, OSHA now recognizes the importance of blanket post-injury drug testing:

The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.

So, if an employer drug tests in order to penalize an employee, then the drug test is questionable and might result in sanctions from OSHA.  Otherwise, post-accident drug testing policies are permissible.  Indeed, OSHA specifically found that the following are “permissible”:

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

OSHA’s clarification is very helpful for Alabama employers.  OSHA’s position in 2016 conflicted with the Alabama Drug Free Workplace Act, which incentivizes employers to adopt post-accident testing policies.  Now OSHA has changed course, and there is little danger to employers who adopt such policies.

Boom & Bust: OSHA Requires Workers in an Aerial Lift to Tie-Off

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OSHA aerial lift tie off Alabama Employment Law
Employees who merely ride in an aerial lift are still required to tie-off.

Despite a creative argument from an employer, the Eleventh Circuit has found that employees are required to tie-off for fall protection when they are in an aerial lift.  Empire Roofing Co. v. Occupational Safety and Health Review Comm., No. 16-17309, 2017 WL 4708162 (11th Cir. Oct. 19, 2017).  In April 2013, an OSHA compliance officer inspected a work site where Empire Roofing was installing metal sheeting on the roof.  The officer saw Empire’s foreman standing in the basket of an aerial lift without being tied off to the boom or basket.  The foreman later admitted that he previously used the aerial lift to transport two employees to the roof.   OSHA fined Empire Roofing for a violation of the OSHA act, and Empire Roofing challenged that fine.

An OSHA regulation required that “[a] body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.”  29 C.F.R. § 1926.453(b)(2)(v).  Despite the fairly clear language of that regulation, Empire Roofing argued that its employees were not actually “working” from the lift.  Instead, they were merely “riding” in the lift.  Nevertheless, OSHA’s established interpretation of the term “working” found “[i]t is well established that employees are considered to be working any time they are performing work or work-related activities.  Moving from one work location to another is considered work-related activity.”  The Eleventh Circuit found that OSHA’s interpretation of that regulation was reasonable, and therefore deferred to OSHA.

Empire Roofing also tried to claim that it could not be responsible for the foreman’s “rogue conduct” in allowing the employees to ride in the aerial lift without tying off.  The Eleventh Circuit found that Empire Roofing would not have been liable if the foreman was the sole person riding in the lift without tying off.  But, because Empire Roofing gave the foreman control over other employees, and the foreman exposed those employees to danger, Empire Roofing was liable for transporting those employees in violation of the regulation.

OSHA: New Decision on Lockout/Tagout

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LOTO Lockout Tagout OSHA
OSHA’s Lockout/Tagout standard applies to all pieces of equipment that function together as one system.

OSHA’s Lockout/Tagout standard applies to all pieces of equipment that “function together as one system” when servicing or maintenance is performed on any part of that system.  Secretary of Labor v. Action Electric Co., No. 16-15792, 2017 WL 2982977 (11th Cir. Jul. 13, 2017).  The Lockout/Tagout (“LOTO”) standard is designed to protect workers performing maintenance on machines from releases of stored energy in the machines or unexpected activation of the machines.

In Action Electric, an apprentice employee was preparing to perform maintenance on fans that were part of a cooling bed system in a steel mill.   Numerous pieces of equipment were part of that system.  The fans were used to cool steel.  Separately, certain counterweights would raise and lower the cooling bed.  The fans and other equipment were in a 325 foot by 100 foot basement below the cooling bed.

The steel mill had a comprehensive set of policies requiring lockout/tagout of all the cooling bed’s equipment prior to any maintenance.  Nevertheless, an Action leadman took his apprentice into the basement before lockout/tagout procedures were complete.  While looking at the cooling fans, a counterweight was de-energized, and it fell, striking the apprentice.

OSHA issued a citation to Action arising from the death, and Action challenged that citation.  Action was able to convince an Administrative Law Judge that the LOTO standard did not apply because the counterweight was not the same equipment being serviced by the Action employee, and the employees were not servicing the fans at the time, but merely viewing them.

During the ALJ proceedings, the Secretary of Labor (through attorneys) wrote briefs clarifying that the LOTO standard applied “to all pieces of equipment that ‘function together as one system’ when servicing or maintenance is performed on any part of that system.”  The Eleventh Circuit found that the ALJ should have deferred to that interpretation of the LOTO standard, and reversed the ALJ’s decision.

Failure to Predict Future Leads to OSHA Liability

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OSHA Liability for Alabama Employers Requires a Crystal Ball
Use your crystal ball to predict OSHA liability

The Eleventh Circuit has affirmed an OSHA fine against an employer, who failed to predict that its employee would be run-over by a dump truck.  Pepper Contracting Svcs. v. OSHA, No. 14-0714, 2016 WL 3971718 (11th Cir. Jul. 25, 2016).

In Pepper, a construction company was re-paving a roadway.   Part of the re-paving involved “milling” the road — a process by which old asphalt is removed from the road and deposited in a dump truck.  If you’ve ever been stuck in a construction zone, you know this is a slow process — proceeding 10 feet per minute, or under 3 miles per hour.  A foreman directed an employee, Alex Diaz, to clear a roadside obstruction approximately 90 feet in front of the milling activities.  That duty required Diaz to stand in the road while working with a shovel.  The foreman did not inform the milling crew that Diaz was working ahead of the project.

Two dump trucks were located in the area where the milling was occurring.  One of the dump truck operators honked his horn at the other driver.  The second driver was startled, accelerated his truck away from the milling operations, and struck Diaz who was 83 to 88 feet away.

This seems like a tragic, unpredictable accident.  Nevertheless, OSHA fined Pepper Contracting for failing to furnish its employees with a place of employment free of recognized hazards that are likely to cause injury or death.  The Eleventh Circuit affirmed that decision.  The Court relied upon three critical facts:  (1) the foreman left Diaz standing in the path of the milling convoy; (2) the foreman permitted the milling convoy to continue work even though Diaz was in the path; and, (3) the foreman failed to warn the dump truck drivers that Diaz was in their path.

Pepper demonstrates the difficulties faced by employers in industries using heavy equipment.  A random, unpredictable series of events can lead to tragic consequences, and potential liability.

Conflicts Between Alabama Law and OSHA Drug Testing Rules

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Drug Test

Potentially, there is a conflict between Alabama’s Drug Free Workplace Act and new OSHA regulations on reporting workplace injuries.

Alabama’s Drug Free Workplace Act gives employers reductions in their workers’ compensation insurance premiums if they adopt a drug free workplace policy, which includes post-accident drug testing.  Here’s a link to the Act.  Drug Free Workplace Act

On August 10, 2016, the Occupational Health and Safety Administration will implement changes to its regulations that could conflict with the Alabama Drug Free Workplace Act.  Under those new regulations an employer must have a “reasonable procedure” that allows employees to report on-the-job injuries.  But, policies “that deter or discourage a reasonable employee from accurately reporting a workplace injury or illness” are not reasonable.  OSHA has taken the position that policies requiring “blanket post-injury drug testing policies deter proper reporting,” and are unreasonable.  Thus, post-accident drug testing could subject employers to OSHA citations.

So, the Alabama Drug Free Workplace Act provides incentives for post-accident drug testing.  But, the new OSHA regulations could result in citations for post-accident drug testing.  Attorney Tommy Eden in Opelika, Alabama has conducted an excellent analysis of this conflict and risk reduction strategies.  His discussion can be found here:  Post Accident Drug Testing

OSHA Inspections:Employers Can Be Cited for Violations Beyond Those In A Complaint

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danger-1294358_1280

A recent case from the Eleventh Circuit Court of Appeals demonstrates the dangers of giving OSHA inspectors free access to an employer’s facility.  See Peacock Timber Co. v. Department of Labor, No. 15-13514, 2016 WL 2848680 (May 16, 2016).  In Peacock Timber, an OSHA inspector visited Peacock Timber Company’s workplace to investigate safety complaints by a former employee.  The inspector found that those complaints were unfounded, but still cited Peacock Timber for other violations noted during the inspection.

Peacock Timber appealed, but the Eleventh Circuit affirmed the penalties imposed.  Peacock argued that the OSHA inspectors violated the Fourth Amendment to the United States Constitution, because inspectors were not authorized to search the facility for violations beyond those in the former employee’s complaint.  But, the Eleventh Circuit found company officials consented to the inspections, which negated any Fourth Amendment limitations.

Peacock Timber demonstrates the dangers of providing OSHA inspectors with unfettered access to an employer’s workplace.  If you do not already have a procedure in place for responding to OSHA inspection requests, I strongly suggest that you consult with counsel to develop a procedure.

Suing Employees Could Violate OSHA’s Whistleblower Protections

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Man with Red Whistle in Office
Man with Red Whistle in Office

A recent decision from the Eleventh Circuit Court of Appeals discusses retaliation claims under the Occupational Safety and Health Act (“OSHA”).  Secretary of Labor v. Lear Corp., No. 15-12060, 2016 WL 2788693 (11th Cir. May 13, 2016).  Lear Corporation (“Lear”) sued a former employee in state court for defamation and intentional interference with business relations.  Thereafter, the United States Secretary of Labor sued Lear claiming that Lear’s state court law suit was merely retaliation for complaints by the employee about health and safety conditions at Lear’s manufacturing plant.

A trial court entered an injunction which prohibited Lear from suing any current or former employees, and Lear appealed.  The Eleventh Circuit Court of Appeals found that the Secretary of Labor was empowered to file such law suits and the trial court generally possessed the power to enter injunctions.  But, the Eleventh Circuit vacated the injunction because the trial court failed to conduct the correct analysis for issuing an injunction.

A federal trial court can only enjoin a state court law suit like Lear’s if it finds:  (1) retaliatory motive and a lack of a reasonable basis for filing the law suit; or, (2) preemption of the state court law suit by some federal law.  In this case, the trial court failed to make either finding and instead issued an injunction “based on potential for retaliation alone.”

In summary, the Eleventh Circuit recognized that law suits filed by employers in state court could be retaliatory and in violation of OSHA’s whistleblower protections.  But, such law suits can only be stopped by a federal court if the court performs the correct analysis.