The Occupational Health & Safety Administration (OSHA) has finalized one its most controversial rules about who may accompany OSHA officials during worksite inspections. The revised rule has the potential to dramatically change the dynamics associated with OSHA inspections. Due to the significant resistance by the regulated community to the proposed rule, which included PRINTING United Alliance, there is a likelihood that the rule will be challenged in federal court and may put the effective date on hold pending the outcome of the lawsuits. Barring court intervention, however, the rule becomes effective on May 31, 2024.
The new rule now allows non-employee representatives to join OSHA inspectors as they walk around worksites during inspections. For example, union representatives may now be asked to serve as the employees’ representative, even if the worksite is not unionized. These union representatives do not have to be affiliated in any way with the company that is being inspected. Previously, the rule required that the employees’ representative had to be an employee of the company being inspected.
For a third-party employee representative to participate in the OSHA inspection their presence must be deemed - in the OSHA inspector’s judgement - that good cause has been shown that the person is “reasonably necessary” to aid in the OSHA inspection. Good cause may be shown by the third-party’s relevant knowledge, skills, or experience with hazards or conditions at the worksite or similar worksites. Also, that person may be reasonably necessary due to their communication skills, for instance, if there is a language barrier between the OSHA official and the employees.
If the worksite inspection requires personal protective equipment (PPE) for the inspector and the employees’ third-party representative, the company must provide PPE to the third-party representative if the company has extra PPE available.
Companies cannot challenge the third-party employees select to represent them during the OSHA inspection. However, companies can challenge whether having a third-party representative is “reasonably necessary” to aid in the inspection.
To prepare for the potential of an OSHA inspection with a third-party, companies should be aware of the following strategies:
- Allow the OSHA inspection and accept the decision that the third-party representative is reasonably necessary to conduct an effective and thorough inspection.
- Accept the OSHA Inspector and refuse to allow the third-party employee representative based on the Fourth Amendment to the U.S. Constitution. This may result in the OSHA Inspector interpreting this as a refusal of entry. The challenge needs to occur immediately and if the third-party is refused entry, the inspector can either continue the inspection or terminate it and return to the office to discuss the response with the Area Director of the office. This may result in the inspector and the third-party representative returning with a search warrant. This process is outlined in the regulation 29 C.F.R. Section 1903.4.
- Deny access to both OSHA inspector and the third-party employee representative. This will trigger the warrant process. This is not a recommended strategy in virtually any situation.
If the third-party representative’s presence is deemed acceptable, understand that the person does not get free reign during the inspection. Care needs to be taken to protect confidential documents, trade secrets, and other privileged information. It is common for the inspector to take photographs of the workplace and for employers to take “side-by-side” photos of the same equipment and work areas. The revised regulations do not entitle non-employee third party representatives to possession of those photographs (or any other materials provided to OSHA during the inspection), or the ability to take photos without the employer’s permission. In addition, access should be provided only to the areas that are the specific focus of the inspection and no areas that contain trade secrets. The Alliance will monitor whether any lawsuits are filed to challenge the rule and whether the effective date will remain May 31, 2024.
For further information about the new rule, OSHA has provided a Frequently Asked Questions resource. PRINTING United Alliance offers OSHA support to Alliance members with our Environmental, Health, and Safety team of Gary Jones at gjones@printing.org and Sara Osorio at sosorio@printing.org.
In this article Adriane Harrison, VP of Human Relations Consulting, PRINTING United Alliance, addresses the newly revised Department of Labor (DOL) OSHA Walkaround Rule. More information about labor and employment laws and regulations can be found at the Center for Human Resources Support or reach out to Adriane directly if you have additional questions specific to how these issues may affect your business at: aharrison@printing.org.
To become a member of the Alliance and learn more about how our subject matter experts can assist your company with services and resources such as those mentioned in this article, please contact the Alliance membership team: 888-385-3588 / membership@printing.org.