On April 1, 2024, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) published its Final Rule clarifying the rights of employees to designate a non-employee representative to be present during workplace inspections. Notably, the designated non-employee representative may “accompany” the OSHA investigator during the physical walkaround portion of the inspection but may not “participate” in the inspection. The Final Rule will become effective May 31, 2024.
Background
The Final Rule amends OSHA’s regulation on employer and employee representatives, 29 C.F.R. § 1903.8(c), which currently limits employee representatives only to employees. An exception to this limitation is if in the judgment of OSHA’s Compliance Safety and Health Officer (“CSHO”), “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,” then the third party may accompany the CSHO during the inspection.
A 2017 decision from the U.S. District Court for the Northern District of Texas interpreted the existing regulation to only permit representatives who are employees, which contradicted OSHA’s longstanding “good cause” exception practice. OSHA subsequently proposed amending the regulation on employer and employee representatives to clarify that both employee and third-party representatives are permitted during OSHA inspections. OSHA initially proposed expanding the third-party representative role from merely accompanying the CSHO during an inspection to “participating” in the inspection, which presumably meant the representative could ask questions and review records. This is not part of the rights of a representative under the current regulation, nor was it intended to be changed under the Final Rule. However, during the rulemaking public comment period, numerous commentors raised significant concerns about the proposed rule violating the First, Fourth, Fifth, and Tenth Amendment and causing other issues by giving a union representative access to a non-union workplace.
Overview of Final Rule
The Final Rule amends 29 C.F.R. § 1903.8(c) as follows:
- Employees may authorize either another employee or a non-employee to serve as their representative during an inspection.
- Reaffirmed that the non-employee representative may accompany the CSHO during the inspection if, in the judgment of the CSHO, “good cause” has been shown why accompaniment by a third party is “reasonably necessary” in order to conduct an “effective and thorough physical inspection of the workplace” as in the prior regulation. However, the Final Rule clarified that the non-employee representative is no longer limited to just an individual with formal credentials. Instead, the third-party representative should be reasonably necessary based on their “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.” Under both the prior regulation and the new Final Rule, if the representative is an employee, no specific qualifications are required.
Potential Issues
The Final Rule does not clarify how the CSHO will determine whether the “good cause” and “reasonably necessary” requirements, included in both the prior regulation and the Final Rule, have been met beyond identifying the limited “qualifications” above (i.e. “because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.”) It also does not include any formal process for an employer to object to the CSHO’s determination or certain non-employee representatives, or to challenge the non-employee representative’s qualifications.
In light of the Final Rule, employers will have to take into account that non-employees designated as the employee representative during OSHA inspections will need to be provided access to the employer’s facilities during OSHA inspections. This raises potential concerns as to employers’ privacy, confidentiality, and liability risks by allowing third-party, non-employees access to employers’ premises and operations during OSHA inspections. While employers are able to enforce their policies and procedures as they otherwise would for third-parties, such enforcement cannot be selective, and employers should avoid appearing to interfere with the representative’s activities during an OSHA inspection. That said, employers should ensure that the representative merely accompanies the CSHO and does not attempt to interview witnesses or request certain records, which despite the amendments to the prior regulation, are not activities involved in the “accompaniment” as provided by the Final Rule.
Employers do have the option of refusing to allow the CSHO and representative access to the worksite or certain areas without a warrant. However, doing so may not be an advisable way to start the investigation process.
Main Takeaways
Once the Final Rule becomes effective, there will likely be legal challenges, given the significant privacy, confidentiality, and liability risks associated with permitting a third-party, non-employee to enter an employer’s premises during an OSHA inspection. Nonetheless, in anticipation of the May 31, 2024 effective date, employers should ensure they update their procedures to instruct management on how to handle receiving OSHA inspections that involve a non-employee representative. Employers with any questions or concerns about compliance should consult with experienced employment law counsel.
This article is not an unequivocal statement of the law, but instead offers some potential issues to consider with counsel. This is provided for informational purposes only and does not constitute legal advice and is not intended to form an attorney-client relationship. Please contact your Sheppard Mullin attorney for additional information.