?The U.S. Occupational Safety and Health Administration (OSHA) intends to implement an interim final rule to clarify how it will use subpoenas. It’s not clear yet whether this rule, tentatively set to be published in June, will lead to an increased use of OSHA subpoenas in the future.
“I think the agency is using this interim final rule to help in its enforcement efforts and to discourage court challenges to its subpoenas,” said Melanie Paul, an attorney with Jackson Lewis in Atlanta. “Essentially, it is a way for the agency to remove what it perceives as potential obstacles during its inspections and reduce employer challenges to its inspection techniques.”
The proposal may get some resistance from employers, but it isn’t subject to the full rulemaking process for federal agencies because it’s not considered a substantial change.
“We anticipate many employers will push back on the [rule],” said Alka Ramchandani-Raj, an attorney with Littler in Walnut Creek, Calif. “OSHA claims it has recurrent issues that have led to disputes between the agency and employers, and for these reasons, it’s proposing the interim final rule. The proposal has the potential to create unreasonable timelines and costs for employers to retain counsel in order to respond to the subpoena with adequate documents and object to preserve [the employer’s] rights. We believe the subpoena process will be less cost-effective for employers, but it may reduce the number of disputes employers have with OSHA.”
OSHA’s proposal said it aims to make the subpoena process more consistent and transparent for employers.
“Uniformity and predictability are generally desirable for the regulated community, but historically, the use of subpoenas has varied, sometimes dramatically, across different regions despite a uniform Field Operations Manual that has pretty detailed guidelines for the use of subpoenas,” said Ben Briggs, an attorney with Seyfarth in Atlanta. “If more uniformity and predictability is achieved through the rule, that would be positive change. But whether the objective becomes reality remains to be seen.”
If OSHA adopts the rule as proposed in June, it “is going to make the OSHA investigation process more litigious,” Ramchandani-Raj said.
Background
OSHA subpoenas may compel businesses to hand over records or documents related to an investigation before a certain deadline. For example, subpoenas could request injury records, illness records, e-mails, training certifications or safety handbooks. If an employer doesn’t comply, OSHA can get a court warrant to enforce the subpoena.
“These subpoenas will hold the same power as any other legal subpoenas, which means employers have to be thorough in how they respond, and they must know how to object and properly reserve their rights,” Ramchandani-Raj said.
Employers can contest a subpoena if they can show it’s overly broad, outside the scope of the investigation or too burdensome.
“Employers need to understand their obligations, their rights and applicable procedures when they receive administrative subpoenas, as procedural mechanisms for challenging or appropriately narrowing subpoenas can vary from agency to agency,” Briggs said. “It is critical for employers to understand that subpoenas are not informal requests to be taken lightly and that failure to timely oppose overbroad subpoenas can lead to a great deal of disruption and expense.”
Ignoring subpoenas may increase the penalties employers have to pay.
“If employers do not respond to these subpoenas correctly, they could be hit with serious, willful or repeat citations and also could be held criminally responsible in some circumstances,” Ramchandani-Raj said.
In July 2022, a judge in the United States District Court for the Eastern District of Missouri issued a federal arrest warrant against the owner of a printing company in St. Louis for failing to comply with OSHA subpoenas.
Prompt responses are important. “Depending on what the interim final rule says, employers may have limited time to retain counsel, prepare their documents and produce the documents within the timelines allotted,” Ramchandani-Raj said. “If they are not responded to in a timely fashion, the employer may waive their rights.”
You may ask for more time to gather and submit the requested documents.
“OSHA is usually willing to reasonably extend that deadline if the employer needs more time in good faith and the parties discuss an extension in advance,” Paul said.