February 19, 2024

Forthcoming Rule Would Expand Who Can Take Part In OSHA Inspections

As Connecting the Dots reported last September, the U.S. Department of Labor (DOL) has proposed a new regulation that, if implemented, would expand the list of people who can be authorized by employees to act as their representative during Occupational Safety and Health Administration (OSHA) physical workplace inspections.

Specifically, the proposal would empower OSHA inspectors to allow union organizers, community activists, or other third parties who do not officially represent the employees or the government to accompany OSHA on an inspection of a workplace. Under current OSHA rules, outside labor union officials and other third parties who do not work at the site are not automatically entitled to accompany an OSHA inspector during an inspection, including the walkaround.

According to news reports, this proposed rule now has been sent to the White House for review, which means it could be finalized and implemented soon.

Organizations that have been critical of the draft rule have argued the proposed changes would contradict the plain language of OSHA’s governing regulations, longstanding agency guidance, and past interpretations of federal workplace safety laws.

Under OSHA’s proposed revision, employees may authorize a non-employee third party if a compliance officer determines the third party is “reasonably necessary to conduct an effective and thorough inspection.” These third parties, which, as noted above, could include advocacy groups, labor unions (whether or not they presently represent employees at the worksite), and other organizations, would not need to have technical safety expertise to participate in the process. Instead, they would only be required to have “skills, knowledge or experience that may help inform the compliance officer’s inspection . . . includ[ing] experience with particular hazards, workplace conditions or language skills that can improve communications between OSHA representatives and workers.”

As originally drafted, the proposed rule would require the OSHA compliance officer to make an official determination that “good cause has been shown why [the union representative or other the third party’s] participation is reasonably necessary to conduct an effective and thorough physical inspection of the workplace.”

Connecting the Dots will continue to follow developments on this rule until a final draft if announced and implemented. Stay tuned for more information.

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