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DOL Issues Inspection Worker Rights Final Rule

THURSDAY, APRIL 4, 2024


At the end of March, 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 compliance officer during a workplace inspection.

According to the release from OSHA, 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.

However, 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.

The rule also explains that a non-employee representative may be reasonably necessary based upon skills, knowledge or experience. This 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.

According to OSHA, these revisions better align to the regulation with the OSH Act and enable the agency to conduct more effective inspections. These regulations reportedly require no specific qualifications for employer representatives or for employee representatives who are employed by the employer.

© iStock.com / sturti
At the end of March, 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 compliance officer during a workplace inspection.
© iStock.com / sturti

At the end of March, 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 compliance officer during a workplace inspection.

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.

The recent final rule is the culmination of notice and comment rulemaking that clarifies OSHA's inspection regulation and aligns with OSHA's longstanding construction of the act, the administration explains.

“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.”

The final rule, which was published in The Federal Register on April 1, will go into effect on May 31.

Industry Reactions

Seymour Midwest
Rapid Prep, LLC

According to the Laborers' International Union of North America (LiUNA) General President Brent Booker, the rule “is a welcome improvement that will empower workers and improve safety.”

“The rule codifies the right of worker representatives–unions and union members–to participate in the OSHA inspection process and raise concerns about workplace hazards without fear of employer retaliation,” explained Booker.

APV Engineered Coatings
NLB Corporation

The National Employment Law Project (NELP) also commended OSHA on its publication of the final rule, noting it will “better enable workers to select representatives of their choice to accompany the OSHA Compliance Safety and Health Officer on worksite inspections."

“Many workers will now have the benefit of third-party representation during worksite walkaround inspections, as long as ‘good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace,’” wrote NELP President and CEO Rebecca Dixon.

Tarps manufacturing, Inc.
Quikspray, Inc.

“This regulatory change will ensure that OSHA is better able to obtain critical information about worksite conditions and hazards, keeping workplaces across the country safer.”

However, the Associated Builders and Contractors of America issued a statement opposing the Worker Walkaround Representative Designation Process final rule, adding that they filed comments opposing the proposed rule in November.

TMI Coatings, Inc.
Just Like New Overspray Management

“Now, construction employees and employers could face serious safety concerns because the final rule has the potential to allow anyone on a jobsite,” said Greg Sizemore, ABC vice president of health, safety, environment and workforce development. “There simply is no business case for this final rule and no benefit during a compliance inspection.

“By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law. This final rule negatively impacts the rights of employers while simultaneously ignoring the rights of the majority of employees who have not authorized a union to represent them.

Modern Safety Techniques
base painters

“OSHA’s rule also poses unnecessary risk to the individual joining the inspection and others on the jobsite if the authorized person is not trained to safely walk a construction jobsite. The rule does not include any requirement that the authorized person be equipped or conduct themselves to the same standards as OSHA safety inspectors. Further, the final rule fails to answer who is legally responsible if the third party gets injured during the inspection or harms someone else.”

Tagged categories: Department of Labor; Good Technical Practice; Government; Health and safety; Inspection; Labor; Laws and litigation; OSHA; OSHA; Program/Project Management; Regulations; Safety; Workers


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