By Hao Nguyen, Esq.
Probably to the dismay of the 1990s hip-hop group House of Pain, the Department of Labor has published a final rule that will allow the employer, employee, or a third-party representative of the employer to accompany the Occupational Safety and Health Administration Compliance Safety and Health Officer (CSHO) during the physical inspection of the workplace (i.e. the “walk around”…there is no “jumping” here). This new regulation is effective on May 31, 2024.
The CSHO must determine, in their best judgment, that there is good cause to show why the third party is reasonably necessary to aid in the inspection based on skills, knowledge, or experience. This rule makes two changes to clarify OSHA’s position.
#1: Employee representatives may be an employee of the employer or a third party
This regulatory change actually reinforces what the OSH Act stated all along. The original language within Section 8(e) of the OSH Act states that employee representatives may either be an employee of the employer of a third party. However, a district court concluded in 2017 that the interpretation was not consistent with the existing regulation. Specifically, the regulation states that representatives “shall be employees of the employer” and suggests that OSH Act’s interpretation as flatly contradict[ing]” of the regulation. The court went back and forth and to clear up any further misunderstanding, this change in the regulation will put the issue to bed.
#2: The third party may have a variety of skills, knowledge, or experience
In reality, many businesses engage the services of a third party to help them comply with their safety goals because they are not well-equipped to do it themselves. This second change recognizes that a third-party representative may have a variety of skills, knowledge, and experience that would help the CSHO during their walkaround and clears up an existing misunderstanding that only those with experience similar to an “industrial hygienist” or a “safety engineer” may only attend the walkaround.
What does this mean for me?
The finalized rule now explicitly states that workers may appoint a fellow employee or opt for another employee or non-employee as a representative during these inspections. This is significant because employers can now select attorneys, consultants, and various other third parties as their representatives during an OSHA inspection. However, the inclusion of non-employee representatives is contingent upon OSHA’s determination that their presence is “reasonably necessary” for the execution of an effective and comprehensive inspection.
Non-employee representatives can be deemed essential for a variety of reasons, including but not limited to, their familiarity with the specific hazards or conditions present in the workplace being inspected or comparable environments. Furthermore, their specialized skills or capacity to facilitate communication between the employer and OSHA inspectors could also qualify them as necessary participants in the inspection process. The rule clarifies that there are no specific qualifications for the representatives, expanding the selection to include anyone with relevant knowledge or skills beneficial for the inspection. However, remember that OSHA inspectors have the final say in determining whether the employer’s selected representative presence is “reasonably necessary” for the inspection.
This new regulation is effective on May 31, 2024.
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