Bench & Bar November/December 2025

FEATURE: EMPLOYMENT LAW

FOURTH AMENDMENT IMPLICATION IN OSHA WORKPLACE SAFETY INSPECTIONS BY ANNIE HARB AND JOHN ROGERS

W orkplace safety is a cornerstone of labor regulation in the United States. Created in 1971 during the Nixon administration, the Occupational Safety and Health Administration (“OSHA”) is tasked with enforcing workplace safety laws along with 22 federally approved state OSHA plans subject to federal oversight. OSHA’s broad regulatory powers pursu ant to 29 U.S.C 651-678 extends to general industry, construction, maritime, and agricultural sectors of employment affect ing virtually every workplace in America. Many employers and their general coun sel view OSHA inspections as events that require them to just open the door and grant unfettered access to their business. However, this is not the case. OSHA’s broad authority to conduct workplace inspections is not unlimited and must operate within the broader framework of constitutional protections. The Fourth Amendment of the United States Constitution, which guards against unreasonable searches and seizures, intersects with OSHA’s broad regulatory powers. Combined, they guar antee employers a constitutional right against unreasonable inspections, and in many cases, operate as a stopgap prevent ing OSHA from expanding the scope of an existing inspection. This dynamic has generated significant legal scrutiny and case law, requiring attorneys to navigate a nuanced and ever-evolving legal landscape when addressing OSHA admin istrative inspections. Here, we explore the legal framework governing OSHA inspec tions within the context of the Fourth

Amendment, key judicial decisions that have shaped this area of law, the procedures OSHA must follow to lawfully inspect a workplace, and practical implications for employers and their counsel. OSHA’S REGULATORY FRAMEWORK FOR WORK PLACE INSPECTIONS The Occupational Safety and Health Act of 1970 (the “OSH Act,” or the “Act”), codified in 29 U.S.C. §§ 651–678, was enacted with the intention of creating safe working con ditions for all employees. OSHA, operating as a division of the Department of Labor and empowered through the Act, has the authority to develop, promulgate, and enforce broad workplace safety regulations. Section 8(a) of the Act grants OSHA the right to enter and inspect workplaces at reasonable times, within reason able limits, and in a reasonable

manner. 1 The statute reads, in part: In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized... to enter without delay and at reasonable times any factory, plant, establish ment, construction site, or other area, workplace or environment where work is performed... and to inspect and investigate... any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee. 2

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