On August 30, 2023, the Occupational Safety and Health Administration (OSHA) issued a Notice of Proposed Rulemaking (NPRM) aimed at revising its existing regulations concerning the designation of representatives authorized by employees to accompany OSHA compliance officers during on-site workplace inspections. The deadline for submitting comments on these proposed changes is October 30, 2023.
Background
The Occupational Safety and Health Act (OSH Act) grants both employers and employees the privilege of designating a representative to accompany OSHA officials during inspections of workplace premises. This collaborative approach is instrumental in ensuring the thoroughness and effectiveness of workplace investigations. It enables OSHA to gather critical information about working conditions and potential hazards within the job site.
Overview of the NPRM
The NPRM introduces clarifications regarding who can be designated as a representative by employees. It outlines that employees can authorize either a fellow employee or a third party who is not directly affiliated with the company. The compliance officer will make this determination based on whether the third-party presence is deemed reasonably necessary for the purpose of conducting a comprehensive and effective inspection.
Furthermore, the proposed revisions emphasize that third-party representatives are not restricted solely to industrial hygienists or safety engineers, as stipulated in the current regulations. Instead, third-party representatives may be deemed reasonably necessary if they possess specific skills, knowledge, or experience that can significantly contribute to the inspection process. This expertise may include familiarity with particular workplace hazards, job site conditions, or language skills that enhance communication between OSHA representatives and workers.
Additionally, OSHA is soliciting public input on the criteria and level of deference it should grant to employees when selecting their representative. This feedback will influence OSHA’s determination of whether a third party should be permitted to participate in an inspection.
It is important to note that these proposed revisions do not alter the existing regulations that empower OSHA compliance officers to assess the authorization of individuals by employees. OSHA retains the authority to disallow participation if an individual’s conduct interferes with the fairness and orderliness of the inspection process or if participation might compromise employer trade secrets.
Next Steps for Employers
Employers are advised to carefully review the NPRM and stay informed about any updates that may arise after the conclusion of the comment period. It is crucial for employers to have a clear understanding of employees’ rights during an OSHA inspection and to stay compliant with any evolving regulations in this regard.
Important Dates
- August 30, 2023 – OSHA published the NPRM to revise their regulations concerning who is authorized by employees to act as their representative during an OSHA inspection.
- October 30, 2023 – Date comments on the NPRM are due.
Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.
