Labor Department Issues Final Rule on Employee Representation During OSHA Inspections

On March 29, the Department of Labor (DOL) announced a final rule related to employee representation during workplace Occupational Safety and Health Administration (OSHA) inspections. Specifically, the final rule clarifies the previous regulation under the Occupational Safety and Health Act (OSH Act). Comparatively, those regulations allowed authorized representatives to accompany employees and employers during workplace inspections to aid such an inspection. Indeed, 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, the OSH Act’s whistleblower provision under Section 11(c) protects employees. In November 2023, OSHA and the National Labor Relations Board (NLRB) joined forces to fortify whistleblower protections in the workplace.

Employee Representation Under OSHA Inspections

Under Section 8(e) and (f) of the OSH Act, employer and employee representatives can accompany a compliance officer during inspections. Furthermore, this representative may aid OSHA officials in completing a thorough investigation. The authorized representative helps inspectors gather information about the worksite’s specific conditions and safety hazards. 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.

Final Rule to Clarify Authorized Employee Representation

Generally, OSHA’s final rule clarifies that employees may authorize employee representation during OSHA inspections. Markedly, employees may authorize a non-employee third party. However, this is only if the compliance officer determines the third party is reasonably necessary to conduct an effective and thorough inspection. The new rule also clarifies that the OSH Act does not limit third-party representatives to hygienists or safety engineers. In reality, third-party representatives outside the two examples mentioned can be reasonably necessary. This applies if they have the skills, knowledge, and experience that may help inform a compliance officer’s inspection. Specifically, such information may include knowledge or expertise with workplace hazards or similar workplace conditions. It could also involve possessing language or communication skills to ensure an effective and thorough inspection.

Employer Takeaways

In conclusion, although this final rule is considered “new,” OSHA wants affected employers to know that it only clarifies what has already been on the books. Chiefly, the final rule is in part a response to a 2017 court decision ruling that OSHA’s existing regulation, 29 CFR 1903.8(c), only permitted employees of the employer to be authorized as representatives. However, in its ruling, the court acknowledged that the OSH Act does not limit who can be considered as “employee representation.” Additionally, the court stated that OSHA’s historic practice was a “persuasive and valid construction” of the OSH Act. As a result, according to OSHA, this final rule is the culmination of notice and comment rulemaking that clarifies the agency’s inspection regulation and aligns with its longstanding construction of the OSH Act. The rule is effective on May 31st, 2024.