A local magistrate judge has recommended a warrant be quashed to inspect the Mar-Jac poultry plant in Gainesville for potential worker-safety violations.
The recommendation calls into question the legal authority of a new oversight program of the Occupational Safety and Health Administration.
“We have an opportunity to file objections before the district judge makes a final decision,” Michael D’Aquino, an OSHA spokesman based in Atlanta, said. “We currently plan to file objections by Aug. 19.”
OSHA initially secured a warrant to conduct an expanded inspection of the poultry facility at 1020 Aviation Blvd. after a Feb. 3 on-the-job injury left a worker with third-degree burns on the hands and face.
The incident happened while the employee was attempting to repair an electrical panel using a screwdriver, which created an electrical circuit and caused burns to the workers’ hands and face.
Mar-Jac reported the injury and subsequent hospitalization as required by law, and OSHA sent a team to investigate Feb. 8.
Company officials, who could not be reached for comment, did not consent to an investigation beyond the area where the incident took place, according to court records.
“In a coarse and indelicate effort to emphasize that Mar-Jac was not consenting to any expansion of the investigation to cover areas of the plant uninvolved with the accident, Mar-Jac’s counsel ... informed Bennett (an OSHA investigator) that the only way she would be allowed to walk through the rest of the facility to make her way to the employee’s locker where his tools were located was if she put a box over her head,” court records read. “Bennett was ultimately allowed to view the tools.”
In seeking the warrant to inspect other areas of inquiry beyond the initial accident investigation, OSHA identified the possibility of “multiple other hazards specifically identified by the Poultry (Regional Emphasis Program), including, lacerations and amputations implicating machine guarding hazards, musculoskeletal injuries indicative of ergonomic problems, injuries associated with material handling equipment, eye injuries caused by chemicals or water contaminants during sanitation operations, and injuries caused by slips, trips and falls.”
The Regional Emphasis Program was unveiled last year and aims to improve worker safety in poultry plants through outreach, education and enforcement efforts. That includes training sessions, public service campaigns, inspections of production operations and working conditions and safety and health programs.
The REP, however, does not represent a change in regulations or new requirements.
According to an OSHA press release, “Workers employed in the poultry industry face many serious hazards that can lead to serious injury, illness and death, including dangerous equipment, musculoskeletal disorders, infectious pathogens, high noise levels and hazardous chemicals.”
The Bureau of Labor Statistics reports poultry workers suffer serious injuries at higher rates than workers in most other private-sector industries and also experience more work-related illnesses. Higher incidences of days missed, hearing loss and respiratory conditions are also reported.
OSHA inspection reports from 2011 reveal citations and fines issued to the Mar-Jac hatchery in Lula for “serious” violations regarding worker falls.
Another poultry producer, Fieldale Farms, has had a number of inspections in recent years at plants in Gainesville, Murrayville and Cornelia, according to OSHA reports. Fieldale was cited for several violations totaling tens of thousands of dollars in penalties.
A Pilgrim’s Pride plant in Gainesville was cited in the last two years by the Environmental Protection Agency for violations of the Clean Water Act.
OSHA officials have expressed concern that injury rates are underreported in the poultry industry because many workers are immigrants who do not speak English or understand the protections afforded them.
The agency believes Mar-Jac’s record-keeping is not in compliance based on reviews of injury logs.
OSHA argued it has the authority to expand unannounced inspections, which result from imminent dangers, fatalities and worker complaints, under the framework of the REP.
U.S. Magistrate Judge J. Clay Fuller found that OSHA essentially needed to establish “probable cause” lest inspection warrants “become tools of harassment.”
“If this sounds like a massive undertaking that could be beyond the agency’s capability, it may be because expanding all unprogrammed inspections to cover all the hazards identified by the REP is beyond the agency’s capability,” according to court records. “Yet the REP offers absolutely no guidance on several obvious questions.”
And based on legal precedent, the court found that a warrant for an expanded inspection cannot be solely based on an employee complaint or report of an injury.
“It may be true that enough injuries of a certain type could support a finding of probable cause to inspect an entire facility for a specific violation, but OSHA’s presentation on this point falls well short of that mark,” Fuller argued in his Aug. 5 recommendation to the U.S. District Court.