OSHA Proposes Changes to Clarify Authorized Employee Representation During Workplace Inspections

Advocacy; Regulations; OSHA

The Occupational Health and Safety Administration (OSHA) recently announced a notice of proposed rulemaking to revise regulations regarding who can be authorized by employees to act as their representative to accompany them during OSHA officers’ physical workplace inspections. 

The OSHA Standard Today 

OSHA standard 1903.8 - Representatives of employers and employees, encompasses the current rule. In summary, the rule mandates the following: 

  • The OSHA compliance officer oversees the inspection and questioning of persons. 
  • The following persons shall be given an opportunity to accompany the officer during the inspection for the purpose of aiding such inspection: 
    • A representative of the employer 
    • A representative authorized by the employees 
  • When the officer determines that additional representatives for the employer and those authorized by the employees will further aid the inspection, the officer may permit them to accompany the inspection. 
  • Compliance officers shall have authority to resolve all disputes regarding representation, however: 
    • ​The authorized representative for employees shall be an employee of the employer.
      • ​If in the officer’s judgement, good cause has been shown why a third party who is not an employee, such as an industrial hygienist or safety engineer, is necessary to conduct a thorough inspection.
    • If there is no authorized representative for employees, the officer shall consult with a reasonable number of employees. 
    • The officer may deny the right of accompaniment to any person whose conduct interferes with a fair and orderly inspection. 

Has Anything Changed? 

Not yet. Historically, OSHA has emphasized employee involvement, and its current announcement seeks to reiterate this commitment as it exists in current law.  “Congress considered worker participation a key element of workplace safety and health inspections when it passed the Occupational Safety and Health Act,” stated OSHA Assistant Secretary Doug Parker in a statement issued in concert with a Notice of Proposed Rulemaking (NPRM). An NPRM is an official document that announces and explains the agency’s plan to address a problem or accomplish a goal. Secretary Parker added, “This proposal aims to make inspections more effective and ultimately make workplaces safer by increasing opportunities for employees to be represented in the inspection process.” At this time, it is unclear whether OSHA is simply highlighting the existing rule or will move forward and propose additional language. 
What Do AHCA/NCAL Members Need to Do? 

The proposed revisions do not change existing regulations. Both employees and employers have the right to an accompanying representative during OSHA inspections and OSHA officers retain the authority to determine who may participate based on the factors highlighted above.  
OSHA is also seeking public comment on the criteria and degree of deference OSHA should give to employees’ choice of representative in determining whether a third party can participate in an inspection.  
Submit comments at Regulations.gov, the federal eRulemaking portal by October 30, 2023. Include Docket Number OSHA-2023-0008 on all submissions. Read the Federal Register notice for more information​