Can an Employer Refuse an OSHA Inspection?

A US District Court recently affirmed OSHA’s authority to enter workplaces for the purpose of conducting inspections and investigations, and ruled that OSHA may select workplaces for inspection at random or by using some types of "relevant statistics."

The court's decision came in response to a New Jersey employer who challenged OSHA's legal authority for conducting an inspection. Staff at the site refused entry to the OSHA officer, and the officer ultimately left the facility without performing the inspection. 

OSHA's enforcement office followed up with the company's legal counsel, but was not successful in gaining permission to inspect the facility. Next, OSHA applied for (and was granted) a warrant to "enter, inspect, and investigate" the facility. The employer then sought to quash the warrant, arguing that OSHA was exceeding its authority under the OSH Act and the US Constitution.

In ruling for OSHA in this case, the court writes: 

"Even in the wake of Loper Bright and the abrogation of deference to agency determinations, [the employer] cites no authority for the  Court  to  find  that Congress’s  directive to OSHA to promulgate  inspection  plans  under  29  U.S.C. §   657(g) is so ambiguous that this Court could find that SST-23 exceeds OSHA’s authority."

What Gives OSHA Authority to Inspect Workplaces?

The Occupational Safety and Health Act of 1970 or OSH Act authorizes OSHA to enter workplaces and perform inspections or investigations. The law states that OSHA may: 

• "Enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and...

• To inspect and investigate during regular working hours and at other reasonable times… any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee."

29 USC §657(a)(1—2)

The law also says OSHA may prescribe rules and regulations, “…including rules and regulations dealing with the inspection of an employer’s establishment...” and that the agency may “compile, analyze, and publish” any information obtained during an investigation or inspection.
 

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Tags: osha, OSHA compliance