OSHA to expand rule for non-employee representatives during inspections
If OSHA inspects your facility, employees can choose a representative to join the walkaround portion. OSHA proposed changes to expand the non-employee representatives allowed during the walkaround.
The current rule allows employees to select a non-employee (third-party) only if the Compliance Safety and Health Officer (CSHO) agrees that the person is "reasonably necessary" to conduct an effective inspection. OSHA provided examples of an industrial hygienist or safety engineer.
A proposed rule published on August 30, 2023, would expand this to address factors such as language barriers and to allow third-parties such as non-employee union representatives.
Union representatives
Back in 2013, OSHA was asked if workers at a non-union site could designate someone from a union as their representative (the Sallman letter). OSHA agreed, as long as the person was authorized by employees. In 2016, an employer group filed a lawsuit challenging that interpretation.
The court held that the Sallman letter conflicted with the regulation, which requires that the representative be an employee. However, the court noted that the OSH Act itself does not require that the representative be an employee, only that the person be authorized by employees. The court further noted that OSHA could change the regulation.
OSHA now proposed that change. The current rule says, "The representative(s) authorized by employees shall be an employee(s) of the employer." The proposed rule would change this to say, "The representative(s) authorized by employees may be an employee of the employer or a third party."
Justification for the change
OSHA noted that in union workplaces, the designated union representative is often an employee of the union, not an employee of the company. Still, in OSHA's view, employees should be able to select the union rep to join the walkaround. Also, non-union employees working in a union shop might designate the union representative to speak on their behalf.
In some cases, employees may want third-party representation from an advocacy group or community organization. In one example from 2012, workers for a company that removed asbestos chose a community organization's attorney and a former employee as their representatives.
In addition, OSHA noted that employees might designate a third-party at multi-employer worksites. Employees from different companies may work under similar conditions and face similar hazards. The authorized representative might not be an employee of the company facing inspection.
Finally, OSHA noted that language barriers may prompt employees to select a bilingual representative or interpreter to represent them during the walkaround.
Representative selection
OSHA proposes to clarify that third-party representatives may have skills, knowledge, or experience (including language skills) that could aid the CSHO's inspection. OSHA would delete the examples of industrial hygienists and safety engineers, although they could still become authorized representatives.
The representative must still be authorized by the employees, so a third-party cannot simply join the walkaround. In addition, employers maintain the right to request that areas of the facility containing trade secrets be off-limits to employee representatives who do not work in that particular part of the facility.
OSHA requested comments by October 30, 2023, on why employees may wish to be represented by a third-party, and examples of third-party representatives who have been or could be reasonably necessary to conducting an effective and thorough workplace inspection.
Key to remember: OSHA is proposing to allow employees greater leeway in selecting a third-party or non-employee representative during walkaround inspections.
