On March 29, 2024, the Occupational Safety and Health Administration (“OSHA”) issued a final rule amending 29 C.F.R. § 1903.8(c), the regulation that governs whom employees may authorize to accompany an OSHA Compliance Safety and Health Officer (“CSHO”) during a physical inspection of an employer’s workplace. Effective May 31, 2024, employees are expressly permitted to authorize a third party to accompany a CSHO on a site visit, so long as the CSHO finds that accompaniment by the third party is reasonably necessary to conduct an effective and thorough workplace inspection. Reasonable necessity may be shown not just by the third party’s technical skills, but by their language and communication skills, which may permit the employees to more effectively communicate their safety concerns to the CSHO.
Prior to this final rule, 29 C.F.R. § 1903.8(c) dictated that an employee representative had to be an employee. Otherwise, the regulation authorized a CSHO to permit accompaniment by a third party if such accompaniment was reasonably necessary to the inspection, but it cited industrial hygienists and safety engineers as the only examples of reasonably necessary third parties.
During the Obama administration, OSHA began interpreting this regulation to allow non-union workers to designate persons affiliated with unions or community organizations to accompany CSHOs on site visits. OSHA promulgated this interpretation first through a letter of interpretation and then through updates to its field operations manual.
Then, in 2017, a federal district court found that OSHA’s letter of interpretation contradicted the regulation and held that such a change could only be made through the typical notice and comment rulemaking structure. OSHA subsequently pulled the letter of interpretation and deleted the language from its field operations manual.
The new rule revives the Obama-era interpretation and emphasizes the newfound flexibility afforded to employees in selecting a third-party representative. Rather than being limited to those with technical expertise, OSHA concluded “that a third-party representative authorized by employees may have a variety of skills, knowledge, or experience that could aid the CSHO’s inspection.” OSHA therefore deleted the two prior examples – i.e., industrial hygienist and safety engineer – and listed in the rule examples of factors that may render it reasonably necessary for a third party to accompany a CSHO, including “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.”
In explaining the rationale behind the rule update, OSHA noted that third-party representatives may possess language skills and cultural competencies that could make workers able to express, or more comfortable expressing, their knowledge and opinions on workplace safety. Similarly, OSHA noted that third-party representatives can build trust among the workforce and explain the protections from retaliation that OSHA provides to employees who participate in the reporting process.
The new rule raises significant concerns for many employers, including the extent to which the rule will facilitate union organizing, misappropriation of confidential information, and third-party infringement on property rights. To alleviate employer concerns, OSHA noted that no change has been made to the portion of the rule forbidding the employer representative from engaging in conduct that interferes with a fair and orderly inspection. OSHA specifically cited “union organizing, political activity, or misconduct,” in addition to union solicitation, as activities that would likely cause the CSHO to deny the employee representative the right to accompaniment. Moreover, OSHA refused to amend the rule to provide advance notice of inspections to third-party representatives. The extent to which such measures will sufficiently address the legitimate concerns of employers remains to be seen.
