On April 1, 2024, OSHA published its final rule clarifying that employees may designate non-employee third parties as their representative during an OSHA inspection. This final rule amends 29 CFR § 1903.8(c) by making two effective changes. First, employees may either select another employee or a non-employee third-party to serve as their representative during an inspection. Second, the regulation no longer suggests that non-employee third-party representatives would be limited to individuals with formal credentials, such as safety engineers or industrial hygienists. Under the new rule, compliance and safety officers are allowed to permit a non-employee third-party to join the inspection if the third-party presence will aid the compliance officer in conducting an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience. The revised § 1903.8(c) becomes effective May 31, 2024.
The purpose of the revised rule is to clarify specifically three things: 1) the representative(s) authorized by employees may be an employee of the employer or a non-employee third-party; 2) employee’s options for third-party representation during OSHA inspections are not limited to persons with formal credentials, such as an industrial hygienist or safety engineer, as limited by the original rule; and 3) a third-party representative authorized by employees may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills or experience. This can include, for example, technical knowledge or practical experience about the processes and hazards present in the workplace, or language in communication skills that facilitate the gathering of information from employees.
Under this rule, the Compliance Safety and Health Officer has the ultimate authority to determine whether good cause has been shown why a third-party representative is reasonably necessary to the conduct of an effective and thorough inspection. The rule does not provide any specific guidance or criteria or even a defined process for compliance officers to follow in making their determination other than referring to whether the representative’s knowledge, skills, or experience, including relevant language or communication skills, would make a positive contribution to the inspection. The third-party representative must be found to aid the inspection in a variety of ways including explaining equipment processes or operations, policies, and procedures, but may not disrupt or interfere with a fair and orderly inspection.
Minnesota has an OSHA approved state plan. Under 29 CFR § 1953.5(a)(1), where a federal program change is a new permanent standard or more stringent amendment to an existing permanent standard, a state shall pass a state standard adopting the new standard within six months of the effective date of the new federal standard. Minnesota will need to pass a new rule adopting, at minimum, the federal OSHA standard.
EMPLOYER RESPONSE TO NEW RULE
In anticipation of the effective date of the federal rule and the Minnesota rule to follow shortly, employers should revisit policies and procedures that instruct on how to receive OSHA inspectors who wish to gain access to the job site and how management should respond to a non-employee third-party designated as the employee representative during an inspection. For instance, employers must be prepared to analyze whether there is an argument that good cause has not been shown that an outside third-party employee representative is reasonably necessary for an effective investigation and articulate an objection to the compliance officer. Also, short of refusing to allow an objectionable third-party representative on the employer’s presence, employers should have procedures in place to ensure that any employee representatives are staying within the scope and purpose of their presence during the inspection. Employer representatives must ensure that employee representatives are not exhibiting behaviors that interfere with a fair and orderly inspection like taking unauthorized photographs or participating in union solicitation activity. The employer needs to be prepared to lodge an objection to that activity to the compliance officer. In addition, procedures need to be put in place to ensure that the employee representatives are not gaining access to areas containing trade secrets.
While it is concerning that the inclusion of non-employee third-party employee walkaround representatives is within the sole discretion of the compliance officer with no defined process to guide their determination, employers must be prepared to monitor the activities of the walkaround representatives to ensure that there are no disruptive behaviors that may interfere with the inspection. In anticipation of these potential problems, employers must be prepared to work with the inspector to make sure that the walkaround representative’s role is being performed, which is only to aid in the inspection.
Employers should try to “stay in loop” in the employee’s process for choosing their walkaround representative. One way to stay in the loop in this process may be through an active safety committee in which it can be encouraged that the employee walkaround representative be chosen or at the very least openly discussed within the safety committee. While employers may not have a choice or a say in the selection of a walkaround representative, there will be transparency regarding potential choices and plans may be made to respond to the walkaround choice if it becomes an issue.
BOTTOM LINE
OSHA’s new rule should not be interpreted as an invitation to unions to ramp up organizing activities under the guise of participation in OSHA inspections. Under the revised § 1903.8(c), the presence of third-party representatives during OSHA walkarounds is only for the purpose of aiding in the inspection. Specifically, the compliance officer must determine whether good cause is shown that participation by the third-party representative is reasonably necessary to aid in an effective inspection of the workplace by virtue of their knowledge, skills, or experience. The presence of a third-party representative cannot be disruptive to or interfere with a fair and orderly inspection.
While it is likely that unions may perceive this rule as an opportunity to ramp up organizing activities, the compliance officer continues to have the authority to deny the right of accompaniment if the conduct of the representative interferes with a fair and orderly inspection. In other words, if a union representative engages in behavior disruptive to the inspection, such as distribution of union literature or failing to comply with the ground rules of the inspection, the compliance officer may exclude the individual from further participation in the inspection. Before agreeing to the presence of non-employee third-party representatives, particularly non-employee union officials, it is important for employers to have an explanation as to what knowledge, skills, or experience the proposed third-party has that will aid in the inspection.