OSHA announced its final rule that clarifies employees’ rights to authorize a representative to accompany an OSHA compliance safety and health officer (CSHO) during a walkaround inspection. The final rule was published on April 1, 2024, and becomes effective May 31, 2024.
The Occupational Safety and Health Act (OSH Act) of 1970 provides employers and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection. The recently announced final rule clarifies that, consistent with the law, employees may authorize another employee to serve as their representative or select a third-party non-employee. A non-employee representative may join the CSHO during inspections if, in the CSHO’s judgment, good cause has been shown that having the individual accompany the CSHO is reasonably necessary to conduct an effective and thorough physical inspection of the workplace.
The final rule clarifies that a non-employee representative may be deemed reasonably necessary based on their skills, knowledge or experience. The final rule notes that third-party involvement may be warranted due to the third parties’ relevant expertise, experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills. OSHA regulations require no specific qualifications for employers or employee representatives who are employed by the employer. OSHA determined these final rule clarifications facilitate workplace inspections by empowering employees to choose representatives who can effectively assist the CSHO during physical inspections.
Employee representation during inspections is crucial for OSHA to gather essential information about workplace conditions and hazards. This rule making does not change the role of an employee’s third-party representative. The role of the representative is still only to accompany the CSHO to aid in the physical OSHA inspection and attend the opening and closing conferences.
OSHA states the final rule’s revisions better align OSHA’s regulation with the OSH Act and enable the agency to conduct more effective inspections. In addition, the agency concluded this final rule creates a return to a more fair, balanced approach that Congress had originally intended.
In response to this change, employers should review the new rule and allow employees to identify and select a trusted and knowledgeable representative to assist in facilitating a CSHO’s information-gathering in the event of an OSHA inspection.