Forgive us the word play (and the song which you now can’t get out of your head. [See https://en.wikipedia.org/wiki/War_(Edwin_Starr_song)], but we wanted to get your attention. You need to know what to do if Cal/OSHA asks permission from you, the employer, to enter a workplace to conduct an inspection.
There are few things in life we know for certain, but this is one: The request to conduct an inspection is pretty much a request you can’t refuse.
There are a couple of circumstances where you can negotiate. But be very cautious about just saying, “No.” Let us explain.
Under LC section 6314, if you refuse a request for entry, Cal/OSHA may request a warrant from the Superior Court in the county where the workplace is located.
To obtain a warrant, the Cal/OSHA inspector must complete a declaration as to why a warrant is needed, draft an order granting the warrant request, have all this reviewed by the Legal Unit, and go to the courthouse to present the paperwork to a judge. Then, usually accompanied by a deputy sheriff or two and more inspectors, go back to the worksite, serve the warrant and start the inspection.
That is a lot of work. So, the question often asked of us is why not demand a warrant? Here are several reasons why you shouldn’t:
1. The level of proof needed to obtain an administrative warrant, as opposed to a criminal warrant, is ridiculously low. It amounts to the inspector saying, "We believe a violation of Title 8 has occurred or is occurring and we want to look around." (Talk about vague. Title 8 is essentially the entire body of regulations covering workplace health and safety.)
2. The hearing on the warrant is held "ex parte". That means that only one side addresses the judge. Cal/OSHA is there but the employer is not even entitled to notice of the time and department where the warrant application will be made.
These two reasons alone make the issuance of the warrant almost a foregone conclusion.
3. When presented with a warrant by a deputy sheriff your options are limited and the stakes have been raised significantly. You can let Cal/OSHA in or, again refuse entry. If you refuse you are very likely to be charged with contempt of court. At worst, you will be arrested on the spot and the inspection will begin anyway.
4. Demanding a warrant raises everyone's blood pressure levels and increases Cal/OSHA's belief - and employees' suspicions - that something bad is going on inside. Even if the original inspection was intended to target a specific machine or part of the workplace, the odds are that now it will be wall-to-wall. Further, it makes for bad media and public relations and, if a union is involved, increases their credibility in the eyes of your workers.
So, given this, another frequent question is when is an employer justified in taking some counter action?
There are a handful of situations when you should consider seeking a postponement of an inspection, short of flat out demanding a warrant. Here are a few:
Cal/OSHA is limited to inspecting during the employer's normal hours of operation. If the plant shuts down at 4 PM, for example, it is reasonable to ask an inspector who shows up at 3:30 to come back the next day.
It is also reasonable to seek a delay to allow your safety manager or attorney to be on hand. Cal/OSHA sometimes honors these requests; sometimes not. Our experience is that Cal/OSHA is becoming less willing to cooperate with employers. In one case we were able to gain cooperation by asking that they not start their inspection until employees had an opportunity to meet with a grief counselor.
The odds of getting Cal/OSHA to agree to a delay after an accident sometimes increase if you allow them to place barrier tape around the site and promise that the scene will be preserved. But, sometimes not.
Circumstances where demanding a warrant might be considered is when you believe the inspection is motivated by harassment, or the worksite is so far away that the inspection will be over before your safety people or attorney can arrive. We represented an employer located five hours from our office. Cal/OSHA had just issued a citation for a specific alleged hazard when another Cal/OSHA inspector sought entry to inspect the same alleged hazard. When he refused to wait for us to get to the plant and to discuss our position, we counseled the employer to demand a warrant. The upside was that we were able to be on hand the following morning when Cal/OSHA and the deputy sheriffs showed up. The downside was that the union had time to rally the media to show up too.
The bottom line is that we believe you need a strong reason for demanding a warrant, and that reason should be one which the media and the public will understand and sympathize with.
In our experience, the warrant card should be the very last one played. In 101 cases out of 100, it isn't worth the turmoil and bad publicity which are likely to result. That’s a pretty good definition of certainty.