OSHA Rule Clarifies Rights Regarding Employee Representation during Inspections

A final rule published by OSHA is intended to clarify employees’ rights to authorize representatives to accompany compliance safety and health officers during workplace inspections. Workers may authorize another employee of the employer to represent them or choose a non-employee third party to serve as their representative. Under the final rule, non-employee representatives may join compliance officers during inspections when, based on the officers’ judgment, “good cause has been shown why they are reasonably necessary to aid in the inspection.” OSHA clarifies in the final rule that non-employee, third-party representatives “may be reasonably necessary [to conduct an effective, thorough inspection] because of their relevant knowledge, skills, or experience.” For example, these representatives may have experience with relevant hazards or workplace conditions, or they may possess language skills that would help facilitate communication between workers and compliance officers.

“[T]hese clarifications aid OSHA's workplace inspections by better enabling employees to select representative(s) of their choice to accompany [compliance officers] during a physical workplace inspection,” the Federal Register notice outlining the rule says. “Employee representation during the inspection is critically important to ensuring OSHA obtains the necessary information about work site conditions and hazards.”

OSHA’s new rule was prompted by the decision of a district court, which concluded that the agency’s longstanding interpretation of one of the Occupational Safety and Health 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. Even so, the court also concluded that “the Act merely provides that the employee's representative must be authorized by the employees, not that the representative must also be an employee of the employer.” The new final rule aligns OSHA’s inspection regulation with its historic practice.

Organizations such as the United Steelworkers applauded the rule, with USW International President David McCall stating that it “provides American workers with a stronger voice on the job and gives them greater confidence that workplace safety investigations will be thorough, precise and reliable.” But business groups like the U.S. Chamber of Commerce and others have expressed concerns, including that the rule might allow union organizers and activists to accompany compliance officers during workplace inspections, or that employers would incur costs associated with protecting confidential business information during inspections where third-party representatives are present.

Compliance officers will retain the authority to prevent individuals from participating in inspections if their conduct “interferes with a fair and orderly inspection,” according to the Federal Register notice. The new rule also does not affect the right of employers to limit entry of employee-authorized representatives into workplace areas containing trade secrets.

AIHA provided comments on this topic to OSHA in November after the agency published its proposed rulemaking. AIHA’s comments are available as a PDF from the association’s website.

The rule will go into effect on May 31, 2024. Further information can be found in OSHA’s news release and in the Federal Register.