OSHA announced that it would amend its Representatives of Employers and Employees regulation, clarifying that representatives authorized by employees may be an employee of the employer or a third party.
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The agency added that such third-party employee representatives may accompany the OSHA Compliance Safety and Health Officer (CSHO) when, in the judgment of the CSHO, good cause has been shown why they are reasonably necessary to aid in the inspection of a workplace, also known as "the walkaround."
OSHA also clarified that a third party may be reasonably necessary because of their relevant knowledge, skills or experience with hazards or conditions in the workplace or similar workplaces or language or communication skills.
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The agency concluded that these clarifications aid OSHA's workplace inspections by better enabling employees to select representatives of their choice to accompany the CSHO during a physical workplace inspection.
The final rule is effective May 31, 2024.
National Association of Manufacturers Chief Legal Officer Linda Kelly criticized the amendment and released the following statement:
[The] rule does nothing to advance OSHA’s mission of ensuring safe working conditions.
Forcing businesses to accommodate third parties with no safety expertise in their facilities infringes on employers’ property rights, invites new liabilities and introduces elements of chaos and disruption to safety inspections.
By unlawfully expanding third-party access to manufacturers’ worksites, this proposal clearly violates OSHA’s statutory mandate to conduct inspections within ‘reasonable limits and in a reasonable manner’ with ‘minimum burden’ on employers and potentially violates manufacturers’ constitutional rights. And, for the first time, OSHA would determine who qualifies as an ‘authorized representative’ of employees, which until now has been exclusively recognized as the jurisdiction of the National Labor Relations Board.
This is another clear example of the federal regulatory onslaught—a proposal that upends settled precedent and ignores the reasoned decision-making required by the Administrative Procedure Act. For these reasons, the NAM will be considering legal action to reverse this incredibly destabilizing decision.
