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Poultry processors pushing back on OSHA inspections

White hens in a barn
Bigstock, smarnad

U.S. poultry processors, at the crosshairs of wall-to-wall OSHA ergonomics inspections, are pushing back in court and seeking limits in the inspection process.

May 23, 2016

U.S. poultry processors are in the crosshairs of the Occupational Safety and Health Administration’ s (OSHA) ergonomics enforcement programs, and one poultry industry safety manager has likened it to being under siege by the federal agency.

Corporate Director of Safety & Loss Programs Reggie McLee of Wayne Farms told the Poultry Processor Workshop that it is more and more difficult to keep poultry plants in compliance as OSHA pushes its interpretation of the regulations and inspections to new limits.

Not only is OSHA applying the Occupational Safety Act in a more aggressive (and controversial) manner but investigations that might begin on specific grounds are expanded to wall-to-wall investigations which last for months at a time.

OSHA pushes regulatory and Constitutional limits

Major points of contention between OSHA and the poultry industry are regulatory and constitutional.

On the regulatory front, OSHA applies the Occupational Safety Act’s General Duty Clause in enforcing citations on the industry. In the absence of regulatory standards, OSHA’s criterion for issuing ergonomic citations is that the workplace must be free of recognized hazards. In a maddeningly circular manner of enforcement, the existence of injuries is proof of the violations.

The Constitutional issue is with the Fourth Amendment. Under OSHA’s Regional Enforcement Program (gerrymandered to cover the nation’s poultry producing states), any complaint or report is used as the springboard for a comprehensive or wall-to-wall inspection of the entire poultry facility. It is argued by the poultry industry that this plan is inconsistent with the Fourth Amendment to the U.S. Constitution, which authorizes search and seizure only upon probable cause.

Advice for processors under OSHA inspection

McLee said his company was first in line for OSHA’s emphasis on the poultry industry, having experienced 12 OSHA inspections in 2014, one of which lasted an entire year.

His advice is that poultry processors make operational managers responsible for safety programs. “It’s not enough for the company’s safety compliance officer to be whispering in the operational manager’s ear,” McLee said. “Operational managers and personnel must accept the safety responsibility.”

But more is needed, McLee said, including assertive management of the poultry processor’s responses when confronted with increasingly aggressive OSHA inspections.

Determine the scope of the OSHA inspection

Speaking at the workshop, attorney Larry Stine said poultry processors need to determine OSHA’s intended parameters for the inspection. “At opening conference with OSHA,” he said, “the first question to ask is, ‘Why are you here and what do you intend to do?’"

While there are circumstances under which processors must consent to wall-to-wall inspections, Stine said, “Processors need to determine the scope of the OSHA inspection and must then act appropriately to limit [the OSHA inspection to the announced scope]. I prefer to give OSHA inspectors consent as long as they are not trying to go too far. Consent is not an all-in-all situation. You can give them consent to come into a specific area but not into other areas.”

Georgia processor pushes back on wall-to-wall inspections

Earlier this year, a Georgia poultry company represented by Stine challenged OSHA’s expansion of a specific investigation (involving injury to a maintenance employee in an isolated part of the plant) by telling OSHA that it would cooperate with the accident investigation but would not consent to a wall-to-wall inspection. OSHA subsequently obtained a warrant which was quashed by a judge.

Argument is proceeding in the case over whether OSHA’s use of narrow incidents to initiate wall-to-wall inspections violates the Fourth Amendment and is contrary to the law. The parties will file briefs in the coming months before a ruling is handed down.

The processor’s argument cites a Supreme Court case (Marshall v. Barlow’s Inc.) which set limits on OSHA’s ability to enter and inspect an employer’s workplace. The Court ruled that nonconsensual, warrantless OSHA inspections were unconstitutional, and that OSHA, as any other government actor, must have either the consent of the employer or a properly issued warrant issued upon showing of probable cause to enter and inspect.