On October 16, the Occupational Safety and Health Administration (OSHA) extended the public comment period for the agency’s proposed rule change regarding worker representatives during inspection walkarounds (88 Fed. Reg. 71329). Comments on the August 30 proposal, titled Worker Walkaround Representative Designation Process (88 Fed. Reg. 59825), were due October 30, but they’re now due November 13.
The proposed rule would clarify provisions and requirements for employee representatives during agency inspectors’ workplace walkarounds. If the agency’s proposal becomes regulation, employees could 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—the examples provided in the agency’s existing regulations. Agency CSHOs still would have the authority to determine whether an individual is authorized by employees and limit third-party participation to protect an employer’s trade secrets.
The agency has asked stakeholders to weigh in on the criteria for employee representatives during an inspection and the degree of deference that OSHA should give to employees’ choice of representative in determining whether a third party can participate in an inspection.
The agency received requests from stakeholders for a 60-day extension of the public comment period. OSHA agreed to the need for an extension but concluded that a 2-week extension is sufficient and appropriate, balancing the stakeholders’ request with the agency’s need for timely input on the proposed rule.
The issue of designating an employee representative during an agency inspection has ended up in federal court.
In 2013, the agency, responding to a question from a labor union health and safety specialist about the agency’s inspection regulations, issued a letter of interpretation. At the time, OSHA affirmed that employees at a workplace without a collective bargaining agreement can 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 the existing regulations, exceeded the agency’s statutory authority, and should have been subject to public notice and comment.
The court held that the letter of interpretation did conflict with existing regulations, but the court rejected the NFIB’s claim that the letter exceeded 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 now due by November 13. (Include Docket Number OSHA-2023-0008 on all submissions.)