On March 29, 2024, the U.S. Department of Labor and the Occupational Safety and Health Administration (OSHA) published a final Rule clarifying the rights of employees to have a representative attend inspections performed by OSHA compliance officers. This Rule is effective May 31, 2024.
Overall, the Rule clarifies that employees, during an OSHA inspection into workplace safety, may designate another employee or a non-employee (i.e., a union representative) to accompany the OSHA official and employer during the investigation. The employee representative is often the highest-ranking union official or union employee representative on-site in unionized workplaces. In non-union settings, the employees can designate an employee when they file a complaint or may select a safety committee member. The employees have the freedom to identify who they want and only need to inform the Compliance Safety and Health Officer (CSHO) who the authorized employee representative is.
If the employees selects a non-employee, such as a union representative, the individual does not need to have formal credentials (such as a safety engineer) and must be permitted to join the inspection if the third-party will aid the CSHO in conducting the an effective and thorough inspection of the workplace because of their knowledge, skills, or experience.
This Rule largely reinstates an OSHA policy from 2013 which stated that non-employees could represent employee interests in enforcement related matters (the Fairfax Memo) and which authorized a union or other representative to act as the walkaround representative so long as authorized by the employees to do so. The Fairfax Memo was challenged in a lawsuit filed by the National Federal of Independent Business, which later withdrew the lawsuit once the Trump administration rescinded the Fairfax Memo in 2017.
There were many comments (more than 11,000) submitted in response to the proposed rule, many of which raised several concerns including what determines “good cause” and “reasonably necessary” to permit the non-employee to join the inspection. There is also no option for an employer to object to the selection of the non-employee representative. Rather, if an employer refuses to permit the third-party to attend the walkaround, OSHA can secure a warrant to conduct the inspection.
Employers should be on how to receive OSHA inspectors who seek access to a jobsite and how management officials should respond if a non-employee third-party is designated as the employee representative during the inspection.
