The U.S. Department of Labor recently published a final rule clarifying the rights of employees to authorize a representative to accompany an Occupational Safety and Health Administration (“OSHA”) compliance officer during an inspection of their workplace. This new rule is effective on May 31, 2024.

The Occupational Safety and Health Act (“Act”) grants employees the right to have a representative present during OSHA inspections. One of the Act’s implementing regulations provides that a representative authorized by employees “shall be an employee of the employer.” However, the regulation also creates an exception for third-party representatives when “in the judgment of the Compliance Safety and Health Officer, good cause has been shown” why the third party is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” The regulation points to two non-exhaustive examples – an industrial hygienist and a safety engineer. Further, an OSHA Standard Interpretation Letter concludes that an employee could authorize a person affiliated with a union or community organization to act as a third-party representative as such representatives make “a positive contribution to a thorough and effective inspection.”

A recent court decision challenged this interpretation in allowing union representatives, finding that OSHA’s existing regulation only permitted “employees of the employer” to be an authorized representative. Hence, the new rule was necessary to clarify the perceived conflict between the Act and its interpretation found in OSHA’s Interpretation Letter.

The new rule makes two changes.

Employer’s Action Items

With the new rule in place, employers should take several steps to protect their rights during an inspection.

If employers have any questions or concerns, we recommend they contact SESCO to ensure compliance.  For assistance, contact the CATA’s contact at SESCO, Jamie Hasty at 423-764-4127 or by email at sesco@sescomgt.com.