The Department of Labor Occupational Safety and Health Administration (OSHA) is amending an existing rule to provide clarification on the right employees have to authorize a representative that accompanies an OSHA Compliance Safety and Health Officer (CSHO) during a workplace inspection.
This amendment is effective May 31, 2024, and makes clear that an employee has the right to either authorize another employee to act as their representative, or an employee may authorize a non-employee to act as their representative. In order for a non-employee representative to accompany the CSHO during a workplace investigation, good cause must be shown describing why a third party would be reasonably necessary. While the amended rule does not contemplate displacing existing union representatives, it is possible that nonunion persons may be appointed as the employee representatives. Additionally, the CSHO may have a second representative, if the CSHO determines that a second representative is “reasonably necessary to the conduct of an effective and thorough inspection and will further aid the inspection.” The employee representative(s) are only allowed to accompany the CSHO for purposes of aiding the OSHA inspection. Employee representatives are not permitted to interfere with fair and orderly inspection.
The reasons a third party may be considered reasonably necessary are their “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills” (See 89 FR 22558 (May 31, 2024), 29 CFR sec. 1903 Federal Register: Worker Walkaround Representative Designation Process). There are no regulations that similarly address the qualifications for either an employer or employee representatives who are employed by the employer.
The stated purpose of the amendment is to ensure alignment with OSHA’s past practice and regulations stemming from the Occupational Safety and Health Act (OSH Act) and allows OSHA to obtain more comprehensive information about the worksite concerning conditions and hazards. According to OSHA, this rule change is not supposed to have any meaningful impact on past practices.
Employer Takeaways
- This rule makes clear that an employee may assign their right to accompany an OSHA CSHO inspector to another employee or non-employee if the non-employee has any relevant knowledge, skills, or experience.
- Employers should expect that, going forward, some employees will authorize a representative of their labor union to accompany the CSHO if the employee workforce is unionized or if the employee has contacts with a union. This could potentially include a union representative for a nonunion employer. The labor union representative still needs to meet the requirements described above, and employers can challenge the labor union representative to prove they have relevant knowledge, skills, or experience. OSHA’s only statement on this issue is that OSHA did not anticipate a problem due to the CSHO’s extensive experience at maintaining control over fair and orderly inspections.
- Some employees may attempt to authorize a personal injury or employment law attorney, paralegal, or private investigator to accompany the CSHO, as well. The attorney, paralegal, or private investigator still needs to meet the requirements described above, and employers can request information proving the person has relevant knowledge, skills, or experience that will assist the CSHO with the OSHA investigation prior to allowing entry. Although nothing in the amended rule appears to contemplate this scenario, if litigation is pending or threatened from the lawyer or law firm representative, the employer may consider refusing entry and insist that any site inspection be done through proper discovery channels during the course of litigation.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
