Agency Proposes Rule on Representation During OSHA Inspections

The Occupational Safety and Health Administration (OSHA) recently proposed changes to regulations related to authorized employee representation during OSHA inspections in the workplace. Specifically, the proposed rule clarifies existing regulation under the Occupational Safety and Health Act (OSH Act) that allows employees and employers to be accompanied by an authorized representative during workplace inspections for the purpose of aiding such an inspection. According to OSHA, employee participation and representation are often critical in carrying out a thorough and effective investigation. In addition to access to authorized representation, employees are also protected under the OSH Act’s whistleblower provision under Section 11(c). In April, OSHA fielded public input on its Whistleblower Protection Program.

Representation Under OSHA Inspections

Under Section 8(e) and (f) of the OSH Act, employers and employees are allowed representatives to accompany a compliance officer during OSHA inspections. Furthermore, this representative may aid OSHA officials in completing a thorough investigation. The authorized representative helps inspectors gather information about specific conditions and safety hazards at the worksite. Section 8(e) also clarifies that “when there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.” All in all, employees and authorized employee representatives may also take the following actions:

• Request such safety inspections when safety violations or imminent danger exists;
• Notify inspectors in writing of any safety violations they reasonably believe exist in the workplace; and
• Have access to and review safety records the employer must maintain.

Proposed Rule to Clarify Authorized Employee Representation

OSHA’s proposed rule clarifies that employees may authorize another employee as representation during OSHA inspections. Alternatively, employees may authorize a non-employee third party if the compliance officer determines the third party is reasonably necessary to conduct an effective and thorough inspection. The proposed changes also clarify that the OSH Act does not limit such third-party representatives to hygienists or safety engineers. In reality, third-party representatives outside of the two aforementioned examples can be reasonably necessary. This applies if they have the skills, knowledge, and experience that may help inform a compliance officer’s inspection. Such information may include knowledge of particular hazards, workplace conditions, or language skills to improve communication between OSHA inspectors and workers. The proposed revisions do not remove OSHA compliance officers’ authority to determine if an individual representative is authorized by employees. Compliance officers may also prevent authorized employee representatives from participating if their conduct interferes with fair and orderly OSHA inspections. Finally, compliance officers may limit representative participation to protect employer trade secrets. In addition to the proposed changes, OSHA seeks public comment on the criteria and degree of deference OSHA should apply to an employee’s choice of representative when determining whether a third party may participate in OSHA inspections.