The U.S. Supreme Court in Marshall v. Barlows, Inc., 436 U.S. 307 (1978) determined that, absent consent or an application exception, an OSHA inspection can only be conducted in accordance with a search warrant signed by judge. Applicable exceptions include the following: (1) the worksite is located on public property, (2) the worksite can be observed without entry on to the worksite, (3) consent to an inspection has already been provided by a person or entity which owns or controls the property on which the worksite is located, (4) emergency conditions exist which do not allow time to obtain a search warrant, (5) OSHA has already been provided access to the worksite, or (6) the worksite is closely regulated.
Determining that an employer has the right to refuse entry if OSHA arrives without a search warrant, however, does not necessarily answer the question of whether this right should be exercised. The reality for the employer is that refusing entry will likely not avoid an inspection altogether. An employer which refuses entry should expect OSHA to return promptly with a search warrant. The only likely benefit to be obtained by demanding a search warrant, therefore, is a short delay of the inspection.
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