OSHA’s Dropped UPS Safety Warrants Point to Long-Game Strategy

OSHA’s choice to allow inspection search warrants against United Parcel Service Inc. over heat-related safety concerns to expire is a legal strategy meant to preserve the agency’s inspection powers, legal watchers say.

The move is the latest in an ongoing lawsuit at the US District Court for the District of Delaware. The court approved two warrants for the Occupational Safety and Health Administration to inspect UPS facilities in Delaware that would also include the agency installing heat-stress monitoring in company trucks.

UPS refused to permit OSHA to conduct the inspections, as well as another unrelated agency inspection in Texas a week later. The shipping giant is now seeking to permanently block OSHA from receiving another warrant in the future from any US district court.

At the heart of the dispute is whether OSHA has the authority to enforce safety inspections for UPS workers while on public roadways. UPS insists that OSHA lacks jurisdiction because the Department of Transportation already regulates the safety of its workers on public roadways. The agency also currently has to rely on its “general duty clause” when it comes to heat-stress related investigations, as its proposed, first-of-its-kind nationwide standard is still going through rulemaking.

OSHA didn’t enforce the warrants in hopes of building a stronger legal case against UPS later, a former DOL official said. As the season changes and temperatures cool while the parties grapple in court, OSHA is “fighting to preserve its right to potentially get another warrant when it’s hot again,” according to Michael Felsen, a retired Department of Labor Boston regional solicitor.

Moreover, without a finalized heat standard from the federal safety agency, determining the point of hazard for heat stress-related cases is difficult, Felsen added.

After recognizing this effort, UPS withdrew its motion for a preliminary injunction to block OSHA from conducting inspections of its trucks. Instead the company says it plans to file a motion for summary judgment in order to prevent OSHA from renewing those warrants when temperatures increase in the spring.

UPS is expected to file a motion for summary judgment while OSHA will file a motion to dismiss and potentially a cross-motion for summary judgment, according to the Tuesday notice.

Warrant Enforcement

OSHA first proposed its heat-stress rule in 2021, which would require employers in a range of sectors to implement a heat emergency response and planning procedure triggered by specific temperature thresholds. The agency launched the public comment period for the heat stress rule in late August, which is expected to close Dec. 30.

The federal agency is doing something novel here in its attempt to address safety on the highways, Felsen said. OSHA doesn’t usually get involved with highway safety, but this is about workers inside trucks, which is an aspect of safety not directly regulated by the Department of Transportation, Felsen added.

When asked how often the agency seeks search warrants, OSHA says it has encountered an average of 49 refusals per year from employers during enforcement inspections over the past six years. The federal agency said the Solicitor of Labor will seek enforcement of a warrant on a case-by-case basis.

“The determination of whether to seek to enforce a warrant will depend on a variety of factors,” Denisha Braxton, an OSHA spokesperson said. “Employers sometimes seek to prevent the OSHA inspection by filing an action in court to quash the warrant or for injunctive relief,” she added.

“This current situation is peculiar” and is almost certainly strategic, said Eric J. Conn, co-founding partner of Conn Maciel Carey. The Justice Department and attorneys in the office of the Solicitor of Labor had “concerns that a potential adverse decision here would create harmful precedent that could curtail the agency’s right to successfully obtain and enforce administrative warrants in the future,” Conn said.

Preemption at Issue

While the likelihood of UPS prevailing on obtaining a nationwide ban against OSHA inspections isn’t an outcome attorneys expect, the preemption issue—whether the Federal Motor Carrier Safety Act preempts OSHA from regulating the safety of UPS drivers—is one that is likely to be litigated.

FMCSA—under the Department of Transportation—focuses on preventing commercial motor vehicle-related fatalities and injuries by enforcing safety regulations. UPS argued OSHA can’t enforce its inspections because the DOT regulates the challenged working conditions.

This case in part involves safety on the highways, but it’s also safety inside a truck—an aspect of safety that isn’t directly regulated by DOT, Felsen said. And because of that, a court could rule in OSHA’s favor since the agency has the general role of protecting workers, and these are workers.

UPS and the International Brotherhood of Teamsters have a five-year agreement that covers more than 300,000 full and part-time employees. The deal includes heat-stress related provisions, such as requiring UPS to implement a heat-prevention plan and equipping all vans with air conditioning.

The deal’s terms mirror the OSHA proposed rulemaking, and is meant to serve as a way to ensure heat safety for workers at the present time.

Morgan, Lewis & Bockius LLP represent UPS. Justice Department attorneys represent OSHA.

The case is United Parcel Serv. Inc. v. OSHA, D. Del., No. 1:24-cv-01036, 10/15/24.