Although they’re probably not your favorite activity, OSHA workplace inspections are nonetheless incredibly important for millions of workers across the country.
These inspections serve the dual purpose of aiding employers and employees in reducing onsite hazards, and lessening the likelihood of workplace injuries and fatalities.
On August 29, 2023, the United States Department of Labor (DOL) introduced a Notice of Proposed Rulemaking that could potentially revolutionize workplace inspections conducted by OSHA Compliance and Safety Officers (CSHOs).
This proposed change aims to expand the pool of individuals allowed to participate in these crucial inspections.
Let’s take a look at the evolution of the process, and what the newly proposed rule could mean for you.
Related Article: Breaking Down the On-Site OSHA Inspection Process
Current Regulations for a Worksite Inspection
Under the existing law, Section 8(e) of the Occupational Safety and Health Act (OSHA) grants both the employer and employees’ authorized representative the opportunity to accompany CSHOs during workplace inspections.
The CSHO holds the authority to settle disputes regarding the identification of these representatives, and can exclude anyone whose behavior disrupts a fair and orderly investigation.
Additionally, the CSHO can grant permission for additional employer and employee representatives to join the workplace walk-throughs.
Related: Here’s Why OSHA Seeks to Update Their PPE Standard
Evolution of Representation
Historically, OSHA required the representative authorized by employees to be an actual employee of the company.
However, over time, OSHA provided further guidance on the interpretation of this requirement.
In 2003, OSHA issued a letter of interpretation (known as the Racic Letter) clarifying that a union representative who filed a complaint on behalf of a single worker could not act as a walk-through inspection representative in a workplace without a labor agreement.
But then, in 2013, OSHA issued a second letter of interpretation (the Sallman Letter), stating that workers in a workplace without a collective bargaining agreement could designate a union or community organization to serve as their representative for an OSHA walk-through inspection.
This interpretation replaced the Racic Letter. Subsequently, OSHA updated its Field Operations Manual in October 2015 to incorporate this interpretation.
Legal Challenge and Reversal
In 2016, The National Federation of Independent Business (NFIB) filed a lawsuit, asserting that OSHA’s Sallman Letter interpretation was inconsistent with its regulations and should have undergone notice and comment rulemaking.
The court ruled in favor of NFIB, finding that the Sallman Letter contradicted rule 29 CFR 1903.8(c), and that any regulation change should go through a notice and comment process.
In response, OSHA rescinded the Sallman Letter and removed references to it in the Field Operations Manual.
The Currently Proposed Rule Change
Now, engaging in a proper notice and comment rulemaking process, OSHA proposes a significant alteration to the representation of employees during physical workplace inspections.
The proposed rule change would allow a broader range of individuals to serve as representatives of the employees, including third parties such as union representatives, bilingual interpreters, equipment experts, and occupational hygienists.
So, what does this mean for employers and employees?
Well, while the DOL and OSHA assert that this rule change will bolster OSHA’s ability to gather crucial information about worksite conditions and hazards, critics argue that it may lead to unwarranted intrusion onto private employer property for unionization efforts.
And so, depending on your point of view & particular situation, you may view the proposed worksite inspection rule as either a major benefit or an intrusion of your jobsite.
Rationale for the Change
OSHA contends that a third-party representative, authorized by employees, can enhance the effectiveness and thoroughness of a physical workplace inspection through their specialized knowledge, skills, or experience.
This change would even permit a union representative to participate in an OSHA workplace inspection in situations where employees are not represented by a union or where no collective bargaining agreement is in place.
- See 29 U.S.C. 657(a), (b) and 29 CFR 1903.4(b)(3).
How to Participate
Originally, the DOL was actively seeking written comments from all stakeholders on this proposed rule change until October 30, 2023. However, this timeframe has recently been extended, with a new deadline of Nov. 13, 2022. This potential shift in workplace inspection protocols signifies a significant development in occupational health and safety regulations.
You can submit comments at Regulations.gov, the federal e-Rulemaking portal. Just be sure to include Docket Number OSHA-2023-0008 on all submissions. Read the Federal Register notice for more information.
Key Takeaways
OSHA is inviting feedback on the clarity of the proposed revisions to paragraph (c) concerning representatives authorized by employees for walk-around inspections.
Although the proposed rule change for worksite inspections is lauded as a major benefit by some, not all employers will be thrilled about the change.
Do believe these changes effectively communicate who qualifies as a valid representative during workplace inspections? Share your insights on whether the proposed modifications offer a clear understanding of this crucial aspect.
Furthermore, OSHA is interested in hearing opinions on the most effective methods for communicating every employee’s entitlement to representation during a physical workplace inspection.
How can this right be best conveyed to ensure that all workers are aware of their right to have a representative present during these critical assessments? Your perspective on this matter is highly valued, so make sure you make your voice heard!
About Worksite Medical
In most cases, OSHA requires medical surveillance testing, and at no cost to employees.
Worksite Medical makes that program easier with mobile medical testing.
We conduct on-site respirator fit tests, as well as audiometric exams, pulmonary function tests and heavy metal lab work, right on your job site. We also keep accurate, easy-to-access medical records for your convenience. You’ll keep your employees at work, and stay ahead of OSHA inspections.
