The [Poultry Industry] is concerned about the Occupational Safety and Health Administration’s (OSHA) recent attempts to expand its authority to conduct wall-to-wall inspections of poultry processing facilities whenever they receive notice of any accident or employee complaint.
There are legal limits on when and how OSHA may inspect, such as:
· Normally scheduled comprehensive (i.e.; “programmed”) inspections, which can be conducted at any time. Facilities to be inspected must be selected on a random, administratively neutral basis;
· Specialized inspections targeted on particular hazards or industries pursuant to special emphasis programs, such as the Regional Emphasis Programs for Poultry Processing in Regions 4, 6 and 7. Facilities must be selected on a random, administratively neutral basis from a list prepared in advance; and,
· Investigations of a specific accident, injuries, complaints or fatalities. However, the courts have ruled that investigating a specific accident does not give OSHA probable cause to expand the inspection beyond the scope of the initial reason for the investigation, unless they identify other hazardous conditions in the course of the investigation: even then, the inspection may be expanded to include only those areas or conditions as to which OSHA can show probable cause.
While the industry agrees that dedicated investigation of accidents directs concentrated effort and resources for successful strengthening of safety procedures, in a letter to OSHA on March 4, the industry requested that OSHA abide by well-established rules governing the process to select facilities for inspections. The letter was written in response to an announcement from OSHA that the agency would use any accident, complaint or referral at every poultry processing facility as a pretext for conducting a wall-to-wall inspection.
The poultry industry expressed its concern that OSHA’s plan overstepped the legal boundaries of the Fourth Amendment’s bar on unreasonable searches and seizures. These boundaries have been recognized by the U.S. Supreme Court in Marshall v. Barlow’sand decisions by the Sixth and Eleventh Circuit Courts of Appeals in Trinity Industries and Sarasota Concrete held that OSHA must comply with the U.S. Constitution in this regard