OSHA Issues New Rule on Employee Representation During OSHA Inspection

OSHA; Regulations

Last week, the Occupational Safety and Health Administration (OSHA) issued its Final Rule “clarifying” that third-party, non-employees may accompany the OSHA Compliance Safety and Health Officer (CSHO) during the walkthrough inspection of a workplace. The new rule, which goes into effect on May 31, 2024, has caused concern for employers, but much of the impact will depend on how OSHA chooses to implement the regulation and on a CSHO’s individual judgment. 

As background, OSHA allows employees to have a representative during the walkthrough inspection of a workplace. Typically, that representative is an employee, but here, the discussion is about whether a non-employee may act as the employee’s representative. The old version of OSHA’s employee representation regulation began with the premise that an employee representative “shall be an employee(s) of the employer.” 29 CFR 1908(c). But it also allowed for participation of a “third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer)” if that person was “reasonably necessary.” 29 CFR 1908(c). The provision was frequently interpreted to limit third-party involvement to expert industrial hygienists and safety engineers, and as such, CSHOs rarely used the provision.  

The new regulation states that “the representative(s) authorized by the employees may be an employee of the employer or a third party.” 89 Fed. Reg. 22601. It then limits the representation by a third party to instances where “good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physician inspection of the workplace." 89 Fed. Reg. 22601. Thus, in OSHA's words, the new provision “clarif[ies] that the representative(s) authorized by employees may be an employee of the employer or a third party.” 89 Fed. Reg. 22558.  

The question then becomes, who is the third-party representative and how are they selected, if one is selected at all. For union workplaces, the employee representative should be selected by “the highest-ranking union official or union employee representative on-site.” OSHA Field Operations Manual, Chap. 3, Sec. VII.A.1. For a non-union building, however, the CSHO has wide latitude to determine who is an employee representative, and OSHA has refused to create a specific process by which non-union employees select a representative. The very few parameters expressed by OSHA are so vague that they say almost nothing. For example: there "is no requirement" that the employee representative must be approved by a majority of employees;  
“in a workplace with more than one employee, [the approval of] more than one employee would be needed to authorize the walkaround representative;” and “[i]f the CSHO is unable to determine with reasonable certainty who is the authorized employee representative, the CSHO will consult with a reasonable number of employees concerning matters of safety and health in the workplace.” 89 Fed. Reg. 22590.  
As such, if OSHA indicates that a non-employee third party will be involved in the inspection, the employer should ask questions about how the representative will be (or has been) selected at the outset of the inspection.  

For employers who want to limit access of third parties to the premises, they will likely need to rely on the language of the regulation itself. OSHA must show by “good cause” that the third party is “reasonably necessary to the conduct of an effective and thorough inspection of the workplace.” 29 CFR 1903.8(c). Further, if a third-party representative deviates from their role to provide expertise for purposes of the OSHA inspection—for example, if a third-party representative begins to encourage unionization during the inspection—the CSHO should terminate the representative’s access to the inspection. 89 Fed. Reg. 22582–83. It should also be noted that the employee representative does not have the right to participate in employee interviews, unless invited by the employee, and should not be involved in any document production or review. The new rule only allows participation in the walkthrough portion of the inspection. Finally, the employer should know their rights under the Fourth Amendment and may want to consult an attorney about requiring OSHA to obtain a warrant before entering the site with an outside third-party representative. 

At this point, it is hard to predict the scope or magnitude of the impact of the new regulation because so much is left to the discretion of the CSHO. OSHA may also implement new guidance at the national, regional, or local levels that will affect how CHSOs choose to implement the regulation. In short, while the regulation could significantly change the landscape of an OSHA inspection, it will take time to determine the impact. Employers should be aware of this development and understand their rights if OSHA knocks on their door.