By Matthew A. SloanA. Scott Hecker, Adam R. YoungPatrick D. Joyce, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Department of Labor has announced notice and comment rulemaking as it seeks to revise its regulations regarding who can be authorized by employees to act as their representative to accompany OSHA compliance officers during physical workplace inspections.

Under current federal OSHA regulations, outside union officials and other third-parties who do not work at the site are not automatically entitled to accompany an OSHA inspector during an OSHA inspection, including the walkaround.  If outside third parties are permitted to attend, it must be because OSHA believes “good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”  29 CFR 1903.8(c).  The reference to “industrial hygienist or a safety engineer” in the current form of the regulation implies that a third-party is expected to have technical safety expertise.

OSHA’s August 29 press release announcing the proposed rule explains the rule would remove the specific reference to “industrial hygienist or a safety engineer” and “clarif[y] that employees may authorize an employee, or they may authorize a non-employee third party if the compliance officer determines the third party is reasonably necessary to conduct an effective and thorough inspection.”  Id.  These third parties – which can include advocacy groups, unions (whether or not they presently represent employees at the worksite), and other labor organizations – need not have technical safety expertise.  Instead, all they need are “skills, knowledge or experience that may help inform the compliance officer’s inspection . . . includ[ing] experience with particular hazards, workplace conditions or language skills that can improve communications between OSHA representatives and workers.”  Id.

As currently drafted, the proposed rule would require the OSHA compliance officer to make an official determination that “good cause has been shown why [the union representative or other the third party’s] participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” Proposed 29 CFR 1903.8(c).  However, OSHA is still seeking public comment on the criteria and degree of deference OSHA should give to employees’ choice of representative in determining whether a third party can participate in an inspection.

Until the proposed rulemaking is complete, under current federal OSHA rules, employees at union and non-union sites in federal OSHA jurisdictions are entitled to the presence of at least one representative who is also an on-site employee during the course of the inspection.  State plan states, like California, have their own rules and regulations regarding union and third-party access to OSHA inspections but, as required by section 18 of the OSH Act, States will need to ensure their standards and enforcement of those standards are at least as effective as any final rule published by OSHA following the notice and comment rulemaking process.

Unionized employers should consult their collective bargaining agreements to determine whether those agreements provide greater access to outside Union representatives or other third-parties than what is currently afforded under the law.

For more information this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.