The Occupational Safety and Health Administration is pushing back against a local judge's recommendation to deny the agency a warrant to inspect the Mar-Jac poultry plant in Gainesville for worker-safety violations.
As previously reported in The Times, U.S. Magistrate Judge J. Clay Fuller found that OSHA needed to establish “probable cause” lest inspection warrants “become tools of harassment.”
But this standard was not met, according to Fuller.
He recommended that a warrant for an expanded inspection be denied because such an investigation could not be solely based on an employee complaint or report of an injury.
In the latest court filing on Aug. 19, OSHA states that high rates of injury at the plant demand an expanded inspection.
The agency believes it has “reasonable suspicion” of safety violations and inadequate recordkeeping.
In 2015, for example, court records indicate that Mar-Jac workers reported at least 25 musculoskeletal injuries, six injuries after being struck by hazards, seven slips, trips or falls, and 10 eye injuries from biological hazards.
OSHA believes that numerous workplace hazards, including “dozens of injuries ... and above average rates in an already high-hazard field with documented instances of underreporting constitutes ‘enough injuries’ for probable cause.”
The court fight has put OSHA's new Regional Emphasis Program in the crosshairs.
Unveiled last fall, the REP is designed to improve worker safety in poultry plants through outreach, education and enforcement efforts, including inspections of production operations, according to the agency.
The REP became the basis for OSHA's request for a warrant to inspect up to 16 areas of inquiry beyond an initial accident investigation that began in February when an on-the-job injury left a worker with third-degree burns on the hands and face.
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 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.
Industry and trade representatives say these numbers are misleading.
“When comparing apples to apples, poultry processing’s rate is much lower than all food manufacturing in general,” Thomas Super, spokesman for the National Chicken Council, told The Times in an email. “Poultry processing’s injury and illness rate of 4.3 is on par with all manufacturing jobs (4.0) and is decreasing at a much faster rate.”
Moreover, the incidence of occupational injuries and illnesses within the poultry sector’s slaughter and processing workforce has fallen by 81 percent in the last 20 years, Super said.
OSHA is now arguing that it has the authority to expand unannounced inspections, which result from imminent dangers, fatalities and worker complaints, under the framework of the REP.
OSHA wants the motion to deny the warrant set aside so it can proceed with inspecting Mar-Jac, saying the judge’s recommendation “erroneously concludes” that reasonable suspicion does not exist.
In addition, this suspicion is based on evidence, and because it was prompted by an accident, raises no Fourth Amendment concerns, the agency argues.
OSHA is also arguing that it has resources and jurisdiction to expand an inspection to at least eight of 16 hazards even without the REP in place.
The U.S. District Court will have the final say at a later, undetermined date.