Today, the U.S. Department of Labor published a final rule clarifying the rights of employees to authorize a representative to accompany an Occupational Safety and Health Administration (OSHA) compliance officer during an inspection of their workplace. The Occupational Safety and Health Act gives the employer and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection. The final rule clarifies that, consistent with the law, workers may authorize another employee to serve as their representative or select a non-employee. For a non-employee representative to accompany the compliance officer in a workplace, they must be reasonably necessary to conduct an effective and thorough inspection. [CIRT has been part of an industry-wide coalition critical of an earlier version of the rulemaking that was overly broad and lacked specificity with respect to an open-ended ability of non-employees to be simply designated to join an OSHA inspection].
The new rule clarifies that a non-employee representative may be reasonably necessary based upon skills, knowledge or experience. This experience may include knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills to ensure an effective and thorough inspection. These revisions claim to better align OSHA's regulation with the OSH Act and enable the agency to conduct more effective inspections. OSHA regulations require no specific qualifications for employer representatives or for employee representatives who are employed by the employer.
The rule is in part a response to a 2017 court decision ruling that the agency's existing regulation, 29 CFR 1903.8(c), only permitted employees of the employer to be authorized as representatives. However, 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. Today's final rule is the culmination of notice and comment rulemaking that clarifies OSHA's inspection regulation and is said to align with OSHA's longstanding construction of the act.
The rule is effective on May 31, 2024.
