August 31, 2023

OSHA Clarifies Who Can Act as Employee Representatives during Inspections

A new proposed rule from OSHA would revise regulations related to employees’ ability to select a representative to accompany compliance safety and health officers during workplace inspections. According to the Federal Register notice that outlines the proposal, the Occupational Safety and Health Act “grants a representative of the employer and a representative authorized by employees the opportunity to accompany OSHA during the physical inspection of the workplace for the purpose of aiding the inspection.” OSHA’s proposed changes were prompted by the decision of a district court, which concluded that the agency’s longstanding interpretation of one of the OSH Act’s implementing regulations—that the Act permits third-party representatives authorized by employees to join compliance officers during inspections—was not consistent with the regulation.

OSHA’s proposed revisions seek to clarify two aspects of the relevant regulation, 29 CFR 1903.8(c). First, the proposal clarifies that employees may authorize a representative who is an employee of the employer or a non-employee third party to accompany OSHA compliance officers on walkaround inspections. Second, the agency’s proposed changes make clear that third-party representatives authorized by employees “may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience.” For example, these representatives may have experience with particular hazards or workplace conditions, or they may possess language skills that would help facilitate communication between workers and compliance officers.

The second proposed revision also addresses the current regulatory text’s reference to industrial hygienists and safety engineers as examples of employees’ options for third-party representation. OSHA’s proposed changes explain that employees are not limited to selecting representatives with skills and knowledge in industrial hygiene or safety. Third parties who might serve as employees’ authorized representatives include union representatives, consultants, attorneys, and representatives from worker advocacy or labor organizations, OSHA explains.

“OSHA proposes to delete the examples of industrial hygienists and safety engineers … so that the focus is properly on the knowledge, skills, or experience of the individual rather than their professional discipline,” the Federal Register notice states. “This proposed deletion does not signal that an industrial hygienist or safety engineer cannot be a representative authorized by employees.”

Compliance officers would retain the authority to prevent individuals from participating in inspections “if their conduct interferes with a fair and orderly inspection,” OSHA stresses in a press release. The proposed revisions would also not affect the right of employers to limit entry of employee-authorized representatives into workplace areas containing trade secrets.

OSHA requests comments on its proposed revisions as well as feedback related to the criteria and degree of deference the agency should give to employees’ choice of representation when determining whether a third party can participate in a workplace inspection. The comment period closes on Oct. 30.

To learn more, refer to OSHA’s press release and the Federal Register.