Enforcement and Inspection

Should You Require a Warrant Before Letting an OSHA Inspector In?

Most experts say that you should consent to OSHA inspections, but a countervailing argument says that you should require a warrant.

When faced with the prospect of an OSHA inspection, you may either consent or request that OSHA obtain a search warrant prior to the inspection. According to some experts, consenting to an inspection is usually the better choice. It is less troublesome, less costly, and more beneficial to the employer. But others see it differently and believe that requiring a warrant might actually be the better option.

If you do require an OSHA inspector to return with a warrant, review the document carefully to determine whether there is a reasonable basis to inspect the premises.

In addition, you should determine that the warrant:

  • Describes the scope of the inspection in detail
  • Contains sufficient information to allow a determination of probable cause

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A careful review—by a knowledgeable member of management—is essential, as any evidence obtained in an inspection conducted in violation of the warrant requirements may not be introduced in any subsequent proceeding.

Possible Benefits

Some attorneys point out possible benefits of requiring an OSHA to get a warrant before inspecting a workplace. For example:

  • The warrant may have a narrow scope. Many federal judges draw narrow warrants strictly limited to the specific complaint alleged in the affidavit put before the judge. This scope may be narrower than that accorded the OSHA inspector without a warrant.
  • You’ll buy some time. The warrant won’t be issued right away—in some cases inspectors wait as long as 30 days. If you know of any existing hazards, you’ll have time to remedy them and avoid a fine. Or if OSHA-required records are not up to date, you’ll have time to bring them into compliance.
  • The risk is small. Because OSHA has little discretion in fining and citations, and because the settlement process is the same regardless of whether a warrant has been issued, there is little risk of greater penalty for those who insist on a warrant.

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So, what should you do? As always, it’s wise to consult your top management and legal counsel ahead of time so that you’ll know what to do when the inspector knocks and you’re on the spot. While most organizations will let the inspector in, it may someday help to know you don’t have to.

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