On August 30, the Occupational Safety and Health Administration (OSHA) announced proposed changes to its regulations for workplace inspections (88 Fed. Reg. 59793). The proposed rule would clarify provisions and requirements for employee representatives during agency inspectors’ workplace walkarounds.
The proposed rule would clarify that employees may authorize another employee or a nonemployee third party to accompany an agency compliance safety and health officer (CSHO) during the physical inspection of a workplace. The proposal also would clarify that third-party representatives aren’t limited to industrial hygienists or safety engineers—examples included in the agency’s current regulations.
Before the walkaround, the CSHO would determine whether the third party can aid in conducting an effective and thorough inspection.
“This proposal aims to make inspections more effective and ultimately make workplaces safer by increasing opportunities for employees to be represented in the inspection process,” Doug Parker, assistant secretary of labor for occupational safety and health, said in an agency statement. “Congress considered worker participation a key element of workplace safety and health inspections when it passed the Occupational Safety and Health Act.”
Agency CSHOs would still have the authority to determine whether an individual is authorized by employees and prevent someone from participating in the walkaround inspection if their conduct interferes with a fair and orderly inspection, as well as limit third-party participation to protect employer trade secrets.
The agency is seeking public comment on the employee representative criteria and degree of deference that OSHA should give to employees’ choice of representative in determining whether a third party can participate in an inspection.
In 2013, OSHA issued a letter of interpretation to a union health and safety specialist in response to a question about the agency’s inspection regulations. The agency affirmed that employees at a workplace without a collective bargaining agreement could designate a person affiliated with a union as their representative during an inspection.
In 2016, the National Federation of Independent Business (NFIB) filed suit in federal court in the Northern District of Texas challenging the agency’s letter of interpretation (Nat’l Fed’n of Indep. Bus. v. Dougherty).
The employers’ group argued that the letter conflicted with OSHA’s regulations, exceeded the agency’s statutory authority, and should have been subject to regulatory notice and comment.
The court held that the letter of interpretation conflicted with existing regulations, but the court rejected the NFIB’s claim that the letter conflicted with the agency’s authority under the Occupational Safety and Health Act. OSHA rescinded the letter of interpretation and removed references to it in the agency’s Field Operations Manual (FOM).
The proposed rule would clarify that the employee representative accompanying the CSHO during the walkaround may be an employee of the employer being inspected or a third party whose skills or knowledge could aid the CSHO during an inspection. Skills and knowledge might include language skills, as well as knowledge of workplace hazards or conditions. The proposal would remove the examples of industrial hygienists and safety engineers currently included in the regulation.
Comments to Regulations.gov are due by October 30. (Include Docket Number OSHA-2023-0008 on all submissions.)