Recently, the Eleventh Circuit Court of Appeals (which covers Alabama, Florida and Georgia) agreed with a district court’s decision to quash (i.e., dismiss) a warrant obtained by the Occupational Safety and Health Administration (“OSHA”) to conduct an inspection at a poultry processing facility. The case began with a worker who sustained severe burns to his hand and face while attempting to repair an electrical panel. The worker had to be hospitalized for his injuries. As required, the facility notified OSHA of the accident, and OSHA sent investigators to the facility for an “unprogrammed” inspection (i.e., an inspection based on specific evidence of an existing violation of an OSHA standard). The investigators not only sought to inspect for hazards relating to the electrical accident but also, to inspect the entire facility for other hazards. The facility allowed OSHA to inspect the accident site but refused to allow OSHA to inspect other areas. Ultimately, OSHA found various potential violations of its standards with regard to electrical safety, personal protective equipment (PPE), the guarding of machines and controlling of hazardous energy. OSHA also determined that the facility’s “OSHA 300 logs” suggested potential violations in six other hazard areas ranging from recordkeeping to slip, trip, and fall hazards.
OSHA subsequently applied for a judicial warrant to inspect the entire facility for potential violations implicated not only by the accident, but also, the six other hazard areas suggested by the OSHA 300 logs. A magistrate judge issued the warrant and the facility filed an emergency motion to quash it. Finding that OSHA failed to establish “reasonable suspicion” for the issuance of a warrant to inspect for potential violations in five of the six hazard areas allegedly suggested by the OSHA 300 logs, the district court quashed the warrant and OSHA appealed.
On appeal, OSHA argued that because the OSHA 300 logs revealed various workplace injuries, hazards must be present, and because hazards must be present, violations are likely to be found. But as the Eleventh Circuit explained, a “hazard” does not necessarily establish the existence of a “violation” and the OSHA 300 logs did not provide “reasonable suspicion” of likely violations sufficient to support an inspection warrant. The Eleventh Circuit further explained that “probable cause” in the criminal law sense is not required for an inspection warrant in an unprogrammed inspection but a showing of specific evidence sufficient to support a reasonable suspicion of a violation is required. This requirement guards against the potential for an abuse of discretion and intrusiveness by OSHA. While some cases may provide a sufficient basis for a full scope inspection, e.g., where there is a pattern of violations or a specific complaint alleging a violation that permeates the workplace, this was not one of those cases.
PPE is, of course, required for health care facilities by way of the Bloodborne Pathogens Standard, as well as, by other OSHA standards. It is important to consult experienced legal counsel when confronted with an OSHA investigation to protect against a fishing expedition by OSHA for potential violations that OSHA merely suspects.
Health Care Company Settles Disability and Pregnancy Discrimination Suit
In a recent press release, the EEOC announced a 1.75 million dollar settlement with a California based health care company in a case involving alleged violations of the Americans With Disabilities Act and Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. According to the EEOC, the company used “rigid leave policies and practices to deny reasonable accommodations to its disabled and/or pregnant employees.” Specifically, the EEOC claimed that the company refused to provide additional leave to its employees and fired them when they were not able to return to work upon the end of their leave, and even fired employees before they completed their leave and would not rehire them. In addition to the substantial settlement amount, the company also agreed as part of the settlement decree to retain an Equal Employment Opportunity monitor to review and revise the company’s EEO policies, implement training to prevent discrimination and harassment based on disability and/or sex, develop a tracking system for employee requests for accommodation and discrimination complaints, and regularly report to the EEOC regarding its compliance with the settlement decree.