OSHA Rescinds Guidance Allowing Nonunion Employees to Select Union Representatives to Participate in OSHA Inspections

McGuireWoods LLP

On April 25, 2017, the Occupational Safety and Health Administration’s Deputy Assistant Secretary released a memo withdrawing a 2013 interpretation that allowed nonunion employees to designate a union representative to participate in an OSHA inspection at their work site.

In 2013, despite OSHA’s own regulations requiring that the employee representative be an actual employee of the employer being inspected, OSHA issued a guidance memorandum stating that “there may be times when the presence of an employee representative who is not employed by that employer will allow a more effective inspection.” Under that interpretation, employees would be permitted to select a union representative to participate in an OSHA inspection despite the fact that that union representative was not an employee.

In withdrawing the 2013 Interpretation, the Deputy Assistant Secretary for OSHA simply stated that the 2013 Interpretation is “unnecessary” given the language of the OSH Act and OSHA’s regulations specifying the limited exception when non-employees are allowed to participate. Thus, although the April 25th memorandum is good news for employers, it does not shut the door entirely to union representatives’ participation in OSHA inspections. If non-union employees can show good cause and demonstrate that the non-employee union representative is “reasonably necessary” to the inspection, OSHA could still allow the union representative to participate. While that should be a tough standard for a union to meet, employers should nevertheless be prepared to counter any such argument that a union representative (or a subject matter expert provided by the union) is necessary.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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