OSHA Extends Comment Period for Proposal Clarifying Who Can Act as Employee Representatives during Inspections

Stakeholders now have an additional two weeks to submit comments on a new proposed rule from OSHA that would revise regulations related to employees’ ability to select a representative to accompany compliance safety and health officers during workplace inspections. The comment period for this proposal, which was originally set to close on Oct. 30, will now end on Nov. 13, 2023. According to OSHA, stakeholders requested a 60-day extension of the comment period, but the agency “believes that a two-week extension is sufficient and appropriate in order to balance [OSHA’s] need for timely input” with stakeholders’ request.

The Federal Register notice outlining OSHA’s proposal explains that 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.” The agency’s proposed changes were prompted by the decision of a district court, which concluded that OSHA’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.

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