DoL Issues NPRM Clarifying Third Parties Can Participate in Physical Workplace Inspections
The U.S. Department of Labor (DOL) has published a Notice of Proposed Rulemaking (NPRM) that revises the current Occupational Safety and Health Administration (OSHA) regulations concerning representatives of employees that can accompany the OSHA Compliance Safety and Health Officer (CSHO) during workplace inspections.
The proposed rule makes it clear that the representatives authorized by employees may be employees of the employer or a third party. If a non-employee(s) is chosen, the OSHA compliance officer will determine whether the third party is reasonably necessary to conduct an effective and thorough inspection. The current regulations provide two examples of third-party representatives that could be present during inspections – industrial hygienists and safety engineers. The proposed update makes it clear that third-party representatives need not be limited to these individuals.
The proposed change would permit union representatives and interest groups to be present during walkarounds, provided the CSHO conducting the inspections deems their presence to be reasonably necessary. In 2013, OSHA issued a letter of interpretation of the OSH Act – 29 C.F.R. § 1903.8(c) – that stated that union representatives could serve as employee representatives, but the guidance was withdrawn following a legal challenge in 2016. A federal judge determined that the DOL had circumvented its notice and comment rulemaking process by releasing an interpretation of the OSH Act as guidance. If the proposed change is signed into law, employers will be permitted to restrict non-employee access to certain parts of their facilities, such as if areas contain trade secrets.
“Third-party representatives may be reasonably necessary because they have skills, knowledge or experience that may help inform the compliance officer’s inspection,” wrote the DOL in its NPRM. “This information may include experience with particular hazards, workplace conditions or language skills that can improve communications between OSHA representatives and workers.” The DOL said employee representation is essential during physical inspections as it helps to ensure that OSHA obtains the necessary information about worksite conditions and hazards.
Get The FREE
OSHA & HIPAA Checklist
Immediate Delivery of Checklist Link To Your Email Address
Please Enter Correct Email Address
Your Privacy Respected
HIPAA Journal Privacy Policy
The proposed change adds 11 words to the current regulation (29 C.F.R. § 1903.8(c)), indicated in bold text below.
“The representative(s) authorized by employees may be an employee of the employer or a third party. When the representative(s) authorized by employees is not an employee of the employer, they may accompany the Compliance Safety and Health Officer during the inspection if, in the judgment of the Compliance Safety and Health Officer, good cause has been shown why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (e.g., because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills).”
The DOL will be accepting comments on the NPRM until October 30, 2023.
