OSHA Permits Nonemployees on Premises for Inspections

In a final rule issued March 29, the Occupational Safety and Health Administration (OSHA) clarified that workers may authorize another employee or nonemployee to serve as their representative to accompany an OSHA compliance officer during a workplace inspection. The new rule takes effect May 31.

“Worker involvement in the inspection process is essential for thorough and effective inspections and making workplaces safer,” said Assistant Secretary for Occupational Safety and Health Doug Parker. “The Occupational Safety and Health Act gives employers and employees equal opportunity for choosing representation during the OSHA inspection process, and this rule returns us to the fair, balanced approach Congress intended.”

House Education and the Workforce Committee Chairwoman Virginia Foxx, R-N.C., criticized the final rule, saying, “Under this rule, unionizing efforts and other activist campaigns are put ahead of safety efforts.”

The rule is part of a response to a 2017 court decision that the agency’s then-regulation permitted only employees of the employer to be authorized as representatives. However, the court said the Occupational Safety and Health Act does not limit who can serve as an employee representative and that OSHA’s historic practice was a “persuasive and valid construction” of the law.

Concerns About Possible Disruption

Many commenters on the rule had questions about how OSHA would handle situations where a third party deviated from their role as the employees’ walkaround representative and engaged in conduct unrelated to the inspection—particularly conduct that interfered with OSHA’s inspection or disrupted the employer’s operations.

The OSHA compliance and safety health officer (CSHO) will ensure that the conduct of inspections does not unreasonably disrupt the operations of the employer’s establishment, OSHA said. If disruption or interference occurs, CSHOs will promptly attempt to resolve the situation, it added. Depending on the severity and nature of the behavior, a warning may suffice in some instances. In other instances, the CSHO may need to terminate the third party’s accompaniment during the walkaround, OSHA said.

One commenter on the rule asserted that most employers currently cooperate with inspections by not requiring warrants, but the commenter predicted that more employers will request warrants if employee representatives can be third parties, including due to the fear of union organizing. However, OSHA anticipates that the vast majority of employers will not deny entry simply because the employees’ walkaround representative is a third party. OSHA will obtain a warrant when necessary to conduct its inspections, OSHA said. And, if it is on notice that a warrantless inspection will not be allowed, OSHA may seek an anticipatory warrant to conduct its inspection without delay. Accordingly, OSHA does not believe that this rule will result in further inspection delays that would be detrimental to worker safety and health.

OSHA implemented a similar rule during the Obama administration through a letter of interpretation called the Fairfax Memo, but the Trump administration rescinded it in 2017.