OSHA Okays Reps for Employees at Its Inspections

WASHINGTON – The U.S. Department of Labor has published a final rule clarifying the rights of employees to authorize a representative to accompany an OSHA compliance officer during an inspection of their workplace.

The Occupational Safety and Health Act gives the employer and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection. The final rule clarifies that, consistent with the law, workers may authorize another employee to serve as their representative or select a non-employee.

For a non-employee representative to accompany the compliance officer in a workplace, they must be “reasonably necessary” to conduct an effective and thorough inspection.

Consistent with OSHA's historic practice, the rule clarifies that a non-employee representative may be reasonably necessary based upon skills, knowledge or experience. This experience may include knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills to ensure an effective and thorough inspection.

These revisions better align OSHA's regulation with the OSH Act and enable the agency to conduct more effective inspections. OSHA regulations require no specific qualifications for employer representatives or for employee representatives who are employed by the employer.

The rule is in part a response to a 2017 court decision ruling that the agency's existing regulation, 29 CFR 1903.8(c), only permitted employees of the employer to be authorized as representatives. However, the court acknowledged that the OSH Act does not limit who can serve as an employee representative and that OSHA's historic practice was a "persuasive and valid construction" of the OSH Act.

This final rule is the culmination of notice and comment rulemaking that clarifies OSHA's inspection regulation and aligns with OSHA's longstanding construction of the act.

"Worker involvement in the inspection process is essential for thorough and effective inspections and making workplaces safer," said Assistant Secretary for Occupational Safety and Health Doug Parker. "The Occupational Safety and Health Act gives employers and employees equal opportunity for choosing representation during the OSHA inspection process, and this rule returns us to the fair, balanced approach Congress intended."

The rule is effective on May 31, 2024.

NACOSH Applauds
The National Council for Occupational Safety and Health (National COSH) said a final “walkaround rule,” will improve workplace safety and reduce on-the-job hazards, by giving workers the right to a representative of their choice during safety inspections.

“The recent tragedy in Baltimore is a terrible reminder about the thousands of U.S. workers, each year, who go to work but never come home,” said Jessica E. Martinez, co-executive director of National COSH. “Tens of thousands more die from long-term exposure to workplace hazards, and millions more become sick or injured. By giving workers a stronger voice in inspecting their workplaces and correcting preventable hazards, OSHA’s new walkaround rule can play an important role in reducing the risk of occupational illnesses, injuries and fatalities.”

“With a trusted worker representative onsite,” said Martinez, “safety inspections can more effectively capture the first-hand knowledge workers have about work processes and potential hazards. A representative selected by workers can also bridge language barriers and reduce the fear of retaliation, which is often a major barrier in gathering accurate information about workplace conditions”

From April 21 through 28, National COSH will join the global labor movement in observing Workers’ Memorial Week, in honor of workers who lose their lives on the job and those who become sick or injured at work.  As part of this observance, National COSH will release its annual list of the Dirty Dozen unsafe employers on Thursday, April 25th. Pre-registration for the Dirty Dozen release event is available at NationalCOSH.org

ABC Criticizes
The Associated Builders and Contractors say the Rule is “bad policy” that “does not prioritize workplace safety.”

It said the rule allows employees to choose a third-party representative, such as an outside union representative or community organizer, to accompany an OSHA safety inspector into nonunion workplaces during site inspections.

“Now, construction employees and employers could face serious safety concerns because the final rule has the potential to allow anyone on a jobsite,” said Greg Sizemore, ABC vice president of health, safety, environment and workforce development. “There simply is no business case for this final rule and no benefit during a compliance inspection.

“By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Sizemore. “This final rule negatively impacts the rights of employers while simultaneously ignoring the rights of the majority of employees who have not authorized a union to represent them. OSHA’s rule also poses unnecessary risk to the individual joining the inspection and others on the jobsite if the authorized person is not trained to safely walk a construction jobsite.

“The rule does not include any requirement that the authorized person be equipped or conduct themselves to the same standards as OSHA safety inspectors. Further, the final rule fails to answer who is legally responsible if the third party gets injured during the inspection or harms someone else.”

Sizemore said OSHA can have a bigger impact on jobsite safety by fostering positive partnerships with employers and promoting safety practices that produce results. For example, according to ABC’s 2023 Safety Performance Report, top-performing contractors that participate in ABC’s STEP Safety Management System are nearly seven times safer than the industry average, said Sizemore.

“Simply put, OSHA’s overreach does nothing to promote workplace health and safety, but instead pushes the administration’s ‘all-of-government’ agenda to encourage unions and collective bargaining.”

For more, go to osha.gov.