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April 19, 2024
On April 1, 2024, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released a final rule addressing employees’ rights to authorize third-party representatives to accompany an OSHA compliance safety and health officer during a workplace inspection. The rule will become effective on May 31, 2024.
OSHA’s Right to Conduct Workplace Inspections
The Occupational Safety and Health Act of 1970 governs safety and health inspections, investigations, and investigatory recordkeeping. Section 8(e) states that OSHA’s inspection authority is essential to carrying out the Act’s purposes and provides that employers must give OSHA access to inspect worksites “without delay” and, “[s]ubject to regulations issued by the Secretary, a representative of the employer and a representative authorized by [its] employees shall be given an opportunity to accompany [the inspector] for the purpose of aiding such inspection.” See 29 U.S.C. 657(e).
Representation During OSHA Inspection
Employee-authorized representatives already are permitted to accompany OSHA workplace safety inspections. However, the regulations state that such representatives “shall be” employees of the employer unless the inspector determines that good cause exists to allow the presence of a third party, like an industrial hygienist of a safety officer. See 29 C.F.R. § 1903.8(c).
The waters were muddied a bit in 2017, when a federal district court in Texas ruled that the regulations permitted only employees of the employer to be authorized representatives. See Nat’l Fed’n of Indep. Bus. v. Dougherty, No. 3:16-cv-2568-D (N.D. Tex. Feb 3, 2017).
Clarifications in OSHA’s Final Rule
The final rule modifies Section 1903.8(c) by clarifying that authorized representatives may be employees of the employer or they may be third parties. The final rule further clarifies that, upon a good cause showing that a third party is reasonably necessary to aid the inspection, the third party may accompany the inspector.
So when does good cause exist?
A third-party representative may be reasonably necessary to aid the inspection because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or because of their language or communication skills.
OSHA’s View on the Importance of Representation at Inspections
OSHA believes that these clarifications aid its inspections because employee representation during the inspection is critically important to ensuring that OSHA obtains the necessary information about worksite conditions and hazards.
Employer Takeaways
The final rule allows for a lot of flexibility. Though OSHA retains final discretion to allow (or disallow) the involvement of an employee-authorized representative in its inspection, employees may be able to select an attorney or a union official to represent their interests. Be mindful of the need to maintain confidentiality in your operations, trade secrets, and proprietary information.
*Special thanks to Nella Venella, our paralegal, for her contributions to this article.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
