OSHA Proposed Rule Would Allow Third Parties (e.g., Union Agents) to Represent Employees During OSHA Inspections

On August 30, 2023, the Occupational Safety and Health Administration (OSHA)
published a proposed rule which would revise OSHA regulations stating who can be
authorized by employees to act as their representatives during physical workplace
inspections.

The current regulation requires an employee representative who accompanies the OSHA
inspector to be an employee of the employer. However, the OSHA inspector may allow
a third party who is not an employee to accompany the inspector if, in the judgment of the
OSHA inspector, good cause has been shown why that third party is reasonably
necessary to conduct an effective and thorough inspection.

The revised regulations would allow employees to designate the employee of a third party
as their representative during the inspection. That designated third party representative
would be allowed to participate in the inspection if, in the judgment of the OSHA inspector,
good cause has been shown why that third party is reasonably necessary to conduct an
effective and thorough inspection. The proposed revisions also clarify that the OSHA
inspector’s decision shall be based on the third party’s relevant knowledge, skills, or
experience with hazards or conditions in the workplace or similar workplaces or language
skills.

OSHA seeks public comment on why employees may wish to be represented by a third-
party representative. Additionally, OSHA seeks comment and examples of third-party representatives who have been or could be reasonably necessary to the conduct of an
effective and thorough physical inspection of the workplace. OSHA is also seeking public comment on the criteria and degree of deference OSHA should give to employee’s choice
of third-party representative.

A full copy of the proposed rule is available online here.

Interested persons may submit written comments to this Proposed Rule by October 30,
2023.

This Client Alert provides a general summary of new legal developments, and is not meant to
provide legal advice. If you have any questions or concerns about this Client Alert, please do not
hesitate to contact us at (570)341-8800.