On August 29, 2023, the U.S. Occupational Safety and Health Administration (OSHA) announced a Notice of Proposed Rulemaking to amend its regulations to allow employee-authorized third-party representatives to accompany OSHA officials during facility inspections. The proposed rule would revive a 2013 Obama-era policy that allowed employees to designate non-employee third-party representatives to accompany OSHA inspectors on walkaround inspections of their employer’s workplace.
Current OSHA regulations allow an employee who is a union representative to participate in the investigation. Specifically, the OSH Act regulations allow a representative of the employer and a representative authorized by employees to join OSHA officials during a workplace inspection. 29 C.F.R. § 1903.8(c) states that the employee-authorized representative “shall be” an employee of the employer. However, the regulation further provides a caveat that the compliance safety and health officer (CSHO) can allow a third-party representative “such as an industrial hygienist or a safety engineer” if they determine good cause is shown that the third party is reasonably necessary.
Takeaway for Employers
The proposed rule will undoubtedly raise concerns among employers in both unionized and non-unionized settings. The rule could provide an entry point for union representatives to organize workers or to further expand their footprint in a workplace. There are additional concerns over leaving the decision to the discretion of individual CSHOs in the field, and the resulting arbitrary interpretation and enforcement of the regulations.
If finalized without substantial modification and clarification, employers are likely to mount legal challenges to OSHA’s ability to mandate open access to their workplace to third parties with potentially adverse legal and business objectives.
In 2013, OSHA issued a standard interpretation letter allowing employees at non-union workplaces to designate non-employees, such as union representatives, to participate in walkaround inspections. The expansion of representation in the worker walkaround representative policy originated from a February 21, 2013, OSHA letter of interpretation issued in response to questions from a Health and Safety Specialist with the United Steelworkers of America in Pittsburgh, Pennsylvania.
The letter asked whether workers at a worksite without a collective bargaining agreement (i.e., non-unionized workplace) may (1) designate a union or community organization representative to act as their “personal representative” for OSH Act purposes; and (2) designate a union or community organization representative to act on their behalf during a walkaround inspection. OSHA answered “yes” to both questions, and the interpretation letter effectively became law, broadly expanding the definition of a permissible “representative."
The February 21, 2013, letter was challenged in a 2016 lawsuit. The federal judge presiding on the matter ruled in February 2017 that OSHA had improperly circumvented the notice-and-comment rulemaking required under administrative law by issuing a letter of interpretation on the issue. The Trump Administration rescinded the policy in May 2017.
Further Details of New Proposal
The newly proposed regulations overcome the administrative procedural deficiencies claim earlier, comply with the federal rulemaking requirements and will, when finalized, pave the way for non-employee union representatives and interest groups to join the inspection, provided the OSHA official determines participation of the third party is “reasonably necessary.”
In addition to the possibility of union representatives or experts hired by unions participating in inspections, the rule as currently proposed would give an OSHA investigator broad discretion to allow participation in the inspection by a wide range of outsiders, including experts retained by employees and members of advocacy groups. The investigator could easily sanction such participation by concluding that it is reasonably necessary to conduct the inspection. The participation of the non-employee would need the approval of the OSHA investigator, but not of the employer.
OSHA describes the proposed rule as aiding “OSHA’s workplace inspections by better enabling employees to select a representative of their choice to accompany the Compliance Safety and Health Officer (CSHO) during a physical workplace inspection.” Specifically, OSHA proposes to revise 29 CFR 1903.8(c) to clarify that (1) a representative authorized by employees may be an employee of the employer or a non-employee third party, and (2) employees may authorize a third-party representative reasonably necessary to conduct an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience.
Public comments on OSHA’s proposal are due by October 30, 2023. Please contact Employers Council if you have any questions regarding your organization’s responsibilities under this new rule or the OSH Act.
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