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The Occupational Safety and Health Administration (“OSHA”) recently finalized a rule (“Final Rule”) that allows workers to designate non-employee representatives to accompany OSHA inspectors during facility inspections. The Final Rule will be effective on May 31, 2024. This is another instance of the Biden Administration returning to the Obama days!

Background

OSHA is a government agency that was created to ensure safe and healthy working conditions by setting and enforcing workplace standards. To effectuate their safety and health goals, OSHA has broad latitude to inspect businesses’ facilities (“Inspections”).

Historically, OSHA interpreted the regulations to allow/require OSHA Compliance Safety and Health Officers (“CSHO”) to bring certain third parties on Inspections. However, OSHA always had guardrails on exactly which third parties could attend. The following third parties were historically permitted:

• The Employer’s representative;
• An employee authorized to represent all employees; and
• A third party is authorized to represent employees with formal credentials that are necessary to the investigation.

The first two bullet points are relatively self-explanatory. The third bullet, however, is the focus of the Final Rule.

OSHA’s old regulations stated non-employee third parties “such as an industrial hygienist or safety engineer,” could accompany OSHA if the CSHO determines the third party’s knowledge is “reasonably necessary” to the Inspection. OSHA and the courts interpreted the regulation as being limited to third parties with credentials similar to industrial hygienists or safety engineers. In effect, this limited non-employee third parties to those with formal credentials.

The New, Lower Standard

OSHA recognized that courts were strictly construing “necessary,” and, as a remedy, OSHA shifted the goal posts. Nuanced in form but rippling in effect, OSHA’s new rule states:

The representative(s) authorized by employees may be an employee of the employer or a third party. When the representative(s) authorized by employees is not an employee of the employer, they may accompany the Compliance Safety and Health Officer during the inspection if [it] is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills). (emphasis added).

OSHA’s Final Rule shifts the goal posts in a few subtle ways. For starters, the Final Rule rebukes the former interpretation that OSHA can only bring third parties with formal credentials. The Final Rule now states a variety of reasons a third party may be “reasonably necessary” – “relevant knowledge, skills, or experience of the workplace (including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).” This list broadens who is “reasonably necessary,” thus leaving employers susceptible to claims that a variety of non-employees are “necessary” for the OSHA Inspection.  

Second, accompanying the Final Rule, OSHA issued 149-page summary of the Final Rule. Included was insight into their vision for how a third-party may be reasonably necessary:

• They might have a particular skill set or experience evaluating similar working conditions in a different facility;
• They may be bilingual or multilingual to better facilitate communication between employees and the CSHO during an inspection;
• They may have cultural competency (exactly how this applies is not explained);
• They may have a relationship with employees; and
• They put employees at ease and enable them to speak more candidly.

As you can see—OSHA is envisioning a very liberal interpretation of “necessary.”

What Should You Do?

Beyond the normal steps you should take when an OSHA Inspection is held, the following is special guidance pertaining to this new rule.

1. Designate an OSHA Czar

Designate one member of your team to be the OSHA specialist (“OSHA Czar” or “Czar”). Train them and ask them to stay abreast of developments at OSHA. If OSHA arrives, ask them to wait for your company representative (your Czar). In most cases, an Inspector will wait for the Company representative to arrive on the scene, as long as the delay is reasonable.

1. Train your Czar on dealing with Third Party Representatives

If your Czar has limited OSHA expertise (and even if they do not), give them access to legal counsel during OSHA Inspections—especially if a third party is present. If any of the Inspectors are not from OSHA, your Czar should be trained to do the following:

1. Ask Who They Are.

The OSHA Czar should ask for the identification of all third parties. The Czar should also ask the name of their employer and their job function.  

2. Understand Their Purpose.

Ask the OSHA Inspector – not the third party – why the third party is reasonably necessary for the Inspection. You should ensure the Investigator articulates a clear justification. For example, if the Investigator says, “They are helpful,” you should follow up and ask, “How are they helpful?” In order to assess whether the third party is reasonably necessary, it is imperative you understand OSHA’s justification.

3. Verify Their Authorization.

To accompany OSHA inspectors, third parties must be authorized by your employees. If you have any reason to doubt that your employees authorized the third party, you should object to their participation. Your objection should be articulate and specific. For example, “There is no way this third party is authorized—half my staff has reported the third party for harassing them during their shifts.”

Objecting to the authorization will only get you so far if the third party is, in fact, authorized. “If the CSHO is unable to determine with reasonable certainty who is the authorized employee representative, the CSHO will consult with a reasonable number of employees [to verify authorization].” 89 Fed. Reg. 22590.   You and your counsel should discuss and decide if objecting to authorization makes sense in your facility.

4. Understand Their Limits.

Third parties are not given unfettered access to your facilities. If you determine that objecting to the third party is not reasonable or otherwise worthwhile, it is important for your Czar to know the limitations on third-party representatives. You have the right to insist that they “stay in their lane!”

• The role of the third-party representative is limited to aiding the inspection; they are only permitted to accompany the CSHO, and they may not stray from the CSHO or conduct their own searches, interviews, or solicitations. If the third party is soliciting crew or acting outside of their scope, you can object to their behavior and their attendance.
• The CSHO is authorized to deny the right of accompaniment to any person whose conduct interferes with a fair and orderly inspection.
• The third party must follow general sanitation and safety procedures.
• Third parties can be denied access to areas in the workplace that contain or might reveal a trade secret.

In Conclusion

As with all technical areas of the law, always seek competent counsel when faced with such challenges, especially if you plan to object to the non-OHSA Inspector’s participation. As more guidance is released, ensure you stay up to date. This is a complex and evolving area of the law. Good luck.