DOL clarifies rights to employee representation during OSHA inspections

DEPOSIT PHOTOS

The U.S. Department of Labor has published a final rule clarifying employees’ rights to authorize a representative to accompany an OSHA compliance officer during an inspection of their workplace.

The rule goes into effect on May 31, 2024.

The Occupational Safety and Health Act allows employers and employees to authorize a representative to accompany OSHA officials during a workplace inspection.

Under the final rule, workers can authorize another employee to serve as their representative. They may also choose someone who isn’t an employee. In order to accompany a compliance officer into a workplace, a non-employee representative must be reasonably necessary to conduct an effective and thorough inspection.

Consistent with OSHA’s existing practice, the rule clarifies that whether a non-employee representative is “reasonably necessary” depends upon skills, knowledge or experience.

Experience might include knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills that are intended to ensure an effective and thorough inspection.

OSHA regulations require no specific qualifications for employer representatives or for employee representatives who are employed by the company.

The rule was issues partly in response to a 2017 court decision holding that the agency’s existing regulation, 29 CFR 1903.8(c), only permitted employees of the employer to be authorized as representatives. In that case, the court acknowledged that the OSH 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 OSH Act.

“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.”