The Occupational Safety and Health Administration (OSHA) is poised to implement a rule allowing union representatives to accompany OSHA Certified Safety and Health Officials (CSHOs) during workplace inspections. The notice of proposed rulemaking was included in the August 30, 2023 issue of the Federal Register. Comments were due on October 30, 2023. The proposed regulation now sits with the White House in what appears to be the last step before issuance.
As a brief history, in February 2013, OSHA issued a letter of interpretation in response to a union’s question “whether workers at a worksite without a collective bargaining agreement could designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative.” Responding in the affirmative, OSHA explained that such person could do so “long as they have been authorized by the employees to serve as their representative in their investigation.” The letter was subsequently rescinded after being challenged in court.
Subsequently, the National Federation of Independent Business (NFIB) brought suit challenging the letter of interpretation, alleging it should have been subject to notice and comment rulemaking and that it conflicted with OSHA’s regulations and exceeded the agency’s statutory authority. In February 2017, the District Court for the Northern District of Texas held the letter of interpretation was inconsistent with the regulation and required notice and comment rulemaking. The court, however, found that the letter was a valid construction of the OSH Act – a small victory for the agency.
Fast forward to the present day, the proposed regulation affects 29 C.F.R. § 1903.8(c). First, OSHA proposes to amend the regulation “to clarify that, for the purpose of the walkaround inspection, the representative(s) authorized by employees may be an employee of the employer or, when they are reasonably necessary to aid in the inspection, a third party.” Second, OSHA proposes to remove the two examples of a third party currently in the regulation (industrial hygienist and safety engineers), “so that the focus is properly on the knowledge, skills, or experience of the individual rather than their professional discipline.” To quell employer concerns, the proposed regulation notes that CSHO’s continue to hold the ultimate decision-making power to determine who may participate in the inspection. The CSHO must determine that the third-party employee representative “would be reasonably necessary to aid in the inspection.” The proposal does not alter the CSHO’s ability to “deny individuals from participating in the inspection if their conduct interferes with a fair and orderly inspection process.”
This new rule may cause significant heartburn for employers, especially those without union-represented employees. Employees may present a union official, business manager, or the like to accompany a CSHO on the inspection. This may, in turn, stoke the fire of unionization efforts. Whether or not you employ union or non-union workers, employers should consult counsel when they are aware of an OSHA inspection to ensure they know their rights before, during, and after an inspection.