On April 1, the Occupational Safety and Health Administration (OSHA) amended its regulations for employee representatives during agency workplace inspections (89 Fed. Reg. 22558).
The April 1 amendments make two changes to workplace walkaround regulations:
- Employee representatives don’t have to be employees of the employer. Employees may designate a third party as their representative.
- Third-party employee representatives don’t have to be industrial hygienists or safety engineers—the earlier regulation gave “industrial hygienist” and “safety engineer” as examples of third-party employee representatives.
OSHA’s revised regulations take effect May 31.
OSHA compliance safety and health officers (CSHO) still have discretion over whether to allow employee representatives to accompany them during a walkaround. CSHOs still may exclude representatives that disrupt or interfere with their walkaround. They also can exclude third-party representatives from areas of a workplace that contain employer trade secrets.
Section 8 of the Occupational Safety and Health (OSH) Act of 1970 governs safety and health inspections, investigations, and investigatory recordkeeping, and Section 8(e) covers employee representatives during inspection walkarounds. Regulations implementing the OSH Act requirements stated that the employee representative “shall be an employee(s) of the employer” but allowed for “a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer).”
OSHA had a long-standing practice of allowing third-party employee representatives on walkarounds, but a federal court determined that the agency’s interpretation conflicted with its regulations.
The April 1 revision strikes the requirement that employee representatives be employees of the employer. It also allows an employee representative with “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills” to accompany an OSHA inspector during the walkaround.
Following OSHA’s August 30, 2023, proposal, employer groups argued that the rule change would constitute a significant change in OSHA policy and would facilitate union organizing. The agency responded that the purpose of the rule change isn’t to facilitate union organizing.
Some argued allowing a union representative to accompany a CSHO during a walkaround without a collective bargaining agreement could be perceived as a Labor Department “endorsement” of the union. The agency responded that the employees choose their representative, and the agency CSHO offers no endorsement but merely determines the representative’s suitability to aid in the inspection.
Other commentors argued the agency’s inspection procedures are sufficient and CSHOs don’t need the assistance of third-party representatives. Others suggested attorneys or experts representing employees anticipating personal injury or wrongful death claims could conduct pre-litigation discovery during an inspection.
OSHA decided to adopt its proposed revisions, which it concluded were better aligned with the OSH Act than its earlier regulations. The agency determined that there’s a wide variety of experts who can aid in an inspection. OSHA asserted that third parties can provide valuable technical expertise during an inspection.
Third-party representatives may also offer language interpretation during a walkaround, supported by “cultural competence” and prior relationships with employees with limited English proficiency.