Seyfarth Synopsis: The Biden Administration’s Fall 2022 Regulatory Agenda for DOL indicates the Agency’s intent to revise and expand its use of administrative subpoenas through an “interim final rule.” OSHA claims the purpose of its planned interim final rule is “to provide helpful clarity to the agency and the regulated public on” what OSHA suggests are “recurrent issues which lead to time-consuming disputes between the agency and employers.” OSHA’s realignment of the role of subpoenas in its investigative process could foreshadow an uptick in OSHA’s subpoena usage and increased adversarial activity between employers and the agency.
According to Chapter 15 of OSHA’s Field Operations Manual (“FOM”), which provides guidance to OSHA enforcement personnel, OSHA issues subpoenas “whenever there is a need for records, documents, testimony, or other supporting evidence necessary for completing an inspection or an investigation of any matter falling within OSHA’s authority.” Subpoenas duces tecum, or for the production of evidence,require employers to produce documents or other evidence at a specific time and location, such as injury and illness records, e-mails and other correspondence, training materials, or employee handbooks and safety manuals. Subpoenas ad testificandum, or “to give testimony,”compel their targets to testify under oath. Notably, OSHA subpoenas are not self-enforcing, so if an employer fails to comply with a subpoena, OSHA must seek court enforcement. Employers have the right to contest a subpoena to show it is, e.g., overbroad, beyond the scope of OSHA’s investigation, or excessively burdensome.
Employers want to avoid these kinds of court conflicts, and “helpful clarity” from OSHA about its use of subpoenas would be…well…helpful. But significant ink has already been spilled in the FOM about the subpoena process, so it is unclear whether this interim final rule will lead to greater uniformity and predictability for the regulated community.
Employers should be aware, as explained by the Federal Register, that OSHA uses an “interim final rule”
[w]hen [it] finds it has good cause to issue a final rule without first publishing a proposed rule . . . . This type of rule becomes effective immediately upon publication. In most cases the agency stipulates that it will alter the interim rule if warranted by public comments. If the agency decides not to make changes to the interim rule, it generally will publish a brief final rule in the Federal Register confirming that decision.
Interim final rules tend to provide less visibility into an agency’s plans and allow for less input from the public before taking effect.
Employers must comply with subpoenas – unless successfully challenged – so they should not be taken lightly. They formally memorialize OSHA’s document demands, and given the potential court involvement noncompliance can invite, we recommend consulting experienced counsel to develop strategies to respond to or contest an OSHA subpoena.
Seyfarth’s subject matter experts will continue to monitor this developing situation to identify changes to the administrative subpoena process and to evaluate the on-the-ground impacts those updates may have on employers.
For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.
— Read on www.environmentalsafetyupdate.com/2023/02/who-let-the-docs-out-osha-intends-to-expand-subpoena-practices/