In January 2023, the Occupational Safety and Health Administration (OSHA) revived a rule that would permit worker-designated representatives to accompany OSHA during the inspection process, regardless of whether the representative is an employee of the workplace being inspected. In other words, under the proposed rule, individuals who do not even work at the inspected workplace could participate in the OSHA inspection at the invitation of a potential union. Workplaces that are not yet unionized should therefore anticipate a scenario where outside organizers accompany OSHA during its walk-around, working in tandem to point out alleged safety and health hazards at the facility.
The proposed rule aims to renew a controversial Obama-era policy that ended in 2017 during the Trump administration when OSHA rescinded the rule amidst legal challenges. As proposed, the rule would have two key impacts. First, it would “clarify” the role of union representatives, many of whom are union staff members and not employees of the workplace, during inspections. This change would affect work sites that are already unionized and allow that union to designate someone who is not employed at the inspected facility—such as a representative from the union’s national office—to accompany OSHA during the inspection. Second, and more divisively, the proposed rule would enable nonunionized workforces to designate union representatives to participate in OSHA inspections, subject only to the requirement that the compliance officer deems the representative’s presence “reasonably necessary to an effective and thorough physical inspection.” While OSHA does not yet provide clear guidance on who is “reasonably necessary” to an inspection, we expect this phrase to be interpreted liberally and that compliance officers will frequently permit a designated representative to participate. Bottom line, OSHA did not revive a rule allowing nonemployees to participate in the OSHA inspection only to have its compliance officers determine that their participation is unnecessary.
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