The U.S. Department of Labor published a Final Rule on March 29, 2024 addressing the right of employees to have a third party (not connected with the workplace) accompany an Occupational Safety and Health Administration (“OSHA”) compliance officer during the facility walkaround phase of an inspection. The Rule opens the door, under certain circumstances, for an employee to designate a union representative to participate in the inspection.
OSHA, part of the Department of Labor, was created by Congress as part of the Occupational Safety and Health Act of 1970 (the “Act”) to try to ensure safe and healthy working conditions for workers by setting and enforcing standards and providing training and education. The Act requires that employers provide a workplace free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to employees and to comply with applicable standards under the Act. OSHA covers most private employers and some public employers, regardless of the size of business.
Under the Act, OSHA has the authority to inspect and investigate any place of employment, including all structures, machines, equipment, and materials within the workplace, and to question privately any employer, owner, operator, agent or employee. In the event of an inspection, the employer and employee each has the right to authorize a representative to accompany OSHA officials during a walkaround.
The Final Rule clarifies that employees may authorize another employee to serve as their representative or a non-employee. Where employees choose a non-employee, they must show the individual is reasonably necessary to aid in the inspection. A third-party may be “reasonably necessary” because of his or her relevant knowledge, skills, or experience, including experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills. OHSA regulations do not require a representative designated by the employee or the employer who is an employee to have any specific qualifications.
In issuing the Final Rule, the Department of Labor cleared up prior inconsistent interpretations regarding the ability to designate a non-employee representative during an inspection. According to the Department of Labor, the revisions in the Final Rule “better align OSHA’s regulation with the [ ] Act and will enable the agency to conduct more thorough inspections.”
For employers, the impact of the Final Rule raises significant concerns, not only as to confidentiality, but also the potential agenda that an outside party may have. For example, the Final Rule opens the door for a union representative to participate in an OSHA inspection as the employee designee during or before a union campaign. The Final Rule becomes effective May 31, 2024, however, employers are advised to stay informed during the upcoming months as it is likely that one or more lawsuits will be filed to enjoin the Rule’s application.
