Agency proposes rule change for onsite safety inspections; comment period ends November 13

The U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) has proposed revisions to the existing rules governing who can participate in OSHA's onsite workplace inspections. The purpose of these revisions is to expand the scope of appropriate third-party representatives who can accompany an OSHA inspector, including to encompass representatives from community organizations, worker advocacy groups, and unions, even if the workplace that OSHA is inspecting is not unionized.

OSHA is currently accepting comments on this proposed revision and has extended the deadline for feedback until November 13, 2023. Those interested in commenting to OSHA are encouraged to do so before the comment period expires, and may use this link to provide OSHA with comments and feedback.

What Is the Proposed Rule Change?

A common feature of any OSHA inspection is an inspector's walkaround of the workplace. OSHA regulations, codified at 29 C.F.R. § 1903.8, permit a representative of the employer and "a representative authorized by [the employer's] employees" to join OSHA inspectors (also known as Compliance Safety and Health Officers) during their onsite walkaround inspection. By default, employee representatives are required to be employees of the inspected employer. However, Section 1903.8(c) permits the inspector to allow an employee-authorized representative to be a non-employee if the inspector believes the non-employee's presence is "reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace."

Section 1903.8(c) identifies industrial hygienists and safety engineers as examples of appropriate categories of non-employee persons that can be selected as employee representatives. But in 2013, the Obama Administration issued an interpretation authored by OSHA Deputy Assistant Secretary Richard E. Fairfax (the "Fairfax Memo") opining that the regulation permitted employees without a collective bargaining agreement to designate a person affiliated with a union or community organization as a representative during an OSHA onsite investigation. This position was challenged as improper rulemaking and contrary to OSHA's statutory authority in a 2016 federal lawsuit, and the Trump Administration ultimately rescinded the Fairfax Memo in 2017.

OSHA's current proposal, if adopted, would expand the scope of permissible "employee representatives" under Section 1903.8(c) to those previously identified in the Fairfax Memo. Specifically, OSHA's Notice of Proposed Rulemaking explains that the agency expects that employees "[i]n workplaces without collective bargaining agreements" will be able to "designate[] a representative from a worker advocacy group, community organization, or labor union to serve as their representative in an OSHA inspection." In addition, OSHA wants to ensure that the scope of potential third-party participants in an inspection is not limited to only those who have appropriate technical skills or expertise, such as the industrial hygienist or safety engineer examples in the regulation's current form. Instead, OSHA proposes deleting those examples altogether, noting in its Notice of Proposed Rulemaking and as an example that "employees may not feel comfortable participating in OSHA's inspection," and as such, "[w]orker advocacy organizations, labor organization representatives, consultants, or attorneys who are experienced in interacting with government officials or have relevant cultural competencies may be authorized by employees to represent them on walkaround inspections."

What Does This Mean for Employers?

As currently proposed, the revised regulation would impose a subjective, vague, and pro-union standard regarding the scope of third parties who can join an OSHA inspection. A clear concern for employers, whether unionized or not, is therefore that representatives from unions and similar groups will be more likely to insert themselves in OSHA inspections and gain access to employer worksites that they otherwise would not have. Although the proposed rule is not yet final and may change depending on the comments OSHA receives, expanding third parties' access raises potential trade secret and employee privacy concerns. In addition, OSHA may find that more employers withhold consent and demand a warrant, as employers have a right to do, where OSHA insists that third parties join the inspection – particularly where the third party lacks meaningful skills, knowledge, or experience that would aid in the safety investigation.

Employers should be mindful of this proposed rule change. But in the meantime, employers should also make sure they have a workplace safety committee and that the committee is functioning properly. Before OSHA can decide whether any third party can join an onsite inspection, the third party has to be authorized by employees. Although the regulation's proposed revisions do not state what "authorized by employees" means, OSHA's Field Operations Manual states that an OSHA inspector will look to the employees' union representative or a workplace safety committee (if there is one) to determine the employees' representative for the onsite inspection walkaround.

The lack of clarity regarding how employees "authorize" a third party could have broader labor law implications. On the one hand, a unionized workforce has already authorized their union to represent them in all matters regarding their hours, wages, and working conditions. The relative safety of the workplace falls squarely within the scope of the union's mandate to represent the employees. And an employer's refusal to allow a union representative to participate in a walkaround would likely result in an unfair labor practice charge filed with the National Labor Relations Board.

But it is unclear whether a non-unionized workforce, where a majority of employees have not expressed support for a particular labor organization, could legally "authorize" a union representative to participate in a walkaround on the employees' behalf. It is likewise unclear whether an employer commits an unfair labor practice by refusing to allow a union representative to participate in a walkaround where the union does not serve as the employees' collective bargaining representative. Arguably, an employer risks violating the National Labor Relations Act by refusing to honor the employees' collective choice for their representative, unless the employer can prevail on the OSHA inspector that the representative is not "reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace" under Section 1903.8(c).

Comment Period and Application in State-Plan States

OSHA is currently seeking public comment on the proposed changes, specifically with regard to the criteria and degree of deference OSHA should give to employees' choice of representative(s) in determining whether a third party can participate in an inspection.

The original deadline for the public comment period was set to conclude on October 30, 2023, but, at the request of stakeholders, that deadline was recently extended to November 13, 2023. Employers and other interested parties may submit comments to OSHA here.

Following the closure of the comment period, it is expected that OSHA will need additional time to evaluate the submitted comments and determine whether further revisions are necessary. Once OSHA has finalized the rule and published it, an effective date will be provided.

Any finalized rule will be directly applicable to private employers in states where OSHA directly enforces safety and health regulations. However, about half of U.S. jurisdictions, such as California, Washington, and Virginia, have adopted state safety and health plans. Each of these states will need to adopt their own version of the federal rule, and, consequently, their requirements and effective dates may differ.

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