OSHA Wants to Clarify Subpoena PracticesApr 11, 2023
The Occupational Health and Safety Administration (OSHA) recently announced its intentions to implement an interim final rule about the use of subpoenas during investigations. The agency claims the rule will provide “helpful clarity” about requests for documents, data, and testimony related to an investigation.
There isn’t a draft of the proposed rule available for review. Because it’s an interim final rule, it will take effect without public comment. OSHA will probably invite comments when it publishes the rule —sometime in June 2023 — and express its openness to making changes if public comments warrant such action.
What does OSHA want?
Other than injury and illness records, the material that OSHA may request in a subpoena includes:
- Safety and health policies, internal and external audits, and training materials
- Equipment manuals and support documentation
- Minutes from safety meetings
- Employee complaint records
- Email and other correspondence
- A subpoena may also compel the testimony of named individuals
What does clarity mean?
We’ll have to wait and see if the interim final rule truly brings more uniformity and predictability to OSHA’s subpoena practices. Chapter 15 of the current OSHA Field Operations Manual — the document that OSHA compliance officers use to guide their inspections — says that OSHA issues subpoenas “whenever there is a need for records, documents, testimony, or other evidence necessary for completing an inspection.” The Manual also states that the employer has three days from receipt to produce required records (i.e., Form 300A) and five days to produce other records or documents “like safety programs and incident reports.”
That’s not much time for the employer to gather material, review it with an attorney, and prepare a response. Employers are encouraged to proactively work with OSHA to establish a reasonable time to produce requested documents, particularly when the scope of the request is extensive or when the requested records aren’t stored at the facility being investigated.
Don’t share proprietary stuff
Employers must remember that documents submitted to OSHA are subject to Freedom of Information Act (FOIA) requests. Employers should review any requested records for sensitive information — like trade secrets and private financial information — and formally request that these documents not be disclosed to the public. Exemption 4 of the FOIA is designed to help employers protect documents where commercial or financial information is understood by all parties to be private and provided to the government under an assurance of privacy.
Expect more subpoenas
Once the rule is published and goes into effect, employers can realistically expect increased use of the subpoena as part of any OSHA investigation. OSHA wouldn’t be making this rule if they didn’t intend to use it. Unless a subpoena is successfully challenged, an employer must comply or face increased monetary penalties, additional citations, or even be held criminally responsible and arrested.
It’s also realistic to assume that issuing more subpoenas will instantly make the investigation process even more litigious than it already is.
You’ll need a lawyer
Employers need to understand their rights and obligations should they receive an administrative subpoena from OSHA or any other government agency. The procedural mechanisms involved in narrowing the scope of a subpoena — or challenging it — can be very tricky to navigate.
If you have received an administrative subpoena for materials or testimony as part of an OSHA investigation and aren’t already working with an OSHA attorney, feel free to contact Orr & Reno for assistance.
About the Author: James Laboe