New Rule Permits Non-Employees to Join OSHA Inspections

A new Department of Labor rule change clarifies the rights of employees to appoint an outside representative to accompany OSHA officers during workplace inspections.

OSHA inspections usually occur after a workplace has had a safety-related incident or a whistleblower has reported suspected safety violations. Attorneys representing employers say the new rule, which comes into force May 31, could be problematic for businesses trying to keep inspections free of disruptions.

Advocates for employers worry that external observers may use their new ability to collect information that can be used to convince employees to join a union.

They also see a potential for other adversaries to join the inspections in search of employer failures. These might include disgruntled former employees, plaintiffs’ attorneys, potential expert witnesses or injured workers’ family members.

OSHA stressed that the final decision as to whether to permit a third party representative to join the inspection is up to the OSHA compliance safety and health officer that conducts the inspection. Either the employer or workers may appeal to the CSHO to reject a representative, but the CSHO decides.

In its response to public comments, OSHA emphasized the importance of employee representation to gathering necessary information about worksite conditions and hazards.

It also noted that the rule does not limit third party representatives to union representatives; third parties’ ability to participate will be based on their knowledge, skills or experience.

“Third party representatives’ sole purpose onsite is to aid OSHA’s inspection,” it wrote, “and CSHOs have authority to deny the right of accompaniment to third parties who do not do that or who interfere with a fair and orderly inspection.”

Supporters of the rule argued that third parties may:

  • Have important technical or subject matter expertise.
  • Have language skills and cultural knowledge.
  • Increase employees’ trust in the inspections.
  • Improve inspections of multi-employer worksites such as construction sites.
  • Balance the rights of employers and employees.

The takeaway

Employers may be more likely to face litigation and a difficult discovery process after an accident when the revised walkaround rule comes into force this month, legal pundits say.

Some observers recommend that employers stand ready to object to participation from plaintiffs’ attorneys who may not have much workplace safety expertise but who know how to fish for clients. It will be important that they evaluate the need for a particular third party to participate in the inspection.

The rule might not take effect on schedule. Court challenges from the groups who have opposed it are anticipated. A court might issue an injunction preventing the rule’s enforcement during litigation.

That is uncertain, however, so employers should be ready on May 31 to permit third parties to join OSHA inspectors on their premises if workers request it.

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