If an employer refuses an OSHA inspection, or if prior to the inspection it is believed that the employer will refuse the inspection, OSHA can seek an inspection warrant. Once the employer receives the OSHA inspection warrant, it is possible to get the warrant quashed, or voided, by bringing a motion to quash. However, a motion to quash an inspection warrant must be made before the warrant is executed. If the employer wants to file a motion to quash the warrant, it must deny OSHA entry and refuse their inspection. After a warrant is executed, it cannot be quashed.
When filing a motion to quash an inspection warrant, there are two bases an employer could assert in support of the motion: lack of probable cause and lack of oath or affirmation support.
Lack of Probable Cause
Probable cause can be demonstrated by showing any of the following:
- There is specific evidence of an existing OSHA violation;
- Evidence supporting a reasonable belief or a reasonable suspicion that the OSH Act has been violated; or
- Reasonable legislative or administrative standards for conducting an inspection on the specific business have been satisfied.
If the warrant was not issued on any of these grounds, it is likely an employer could base its motion to quash on a lack of probable cause. The reasonableness of the probable cause is also relevant—an inspection can be unreasonable if the invasion of the search outweighs the need for the inspection.
Lack of Oath or Affirmation
Usually, the Secretary of Labor’s sworn application is sufficient, especially if given alongside supplemental material, such as an employee complaint, or other allegations of potential significant hazards to workers. But without a sworn application, the employer could raise a lack of oath or affirmation as grounds for a motion to quash the inspection warrant.