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The Occupational Safety and Health Administration (OSHA) has published a final rule amending a regulation regarding the right to designate a representative to accompany OSHA inspectors during a workplace inspection. Why do we need this, you ask?

In the world of occupational safety and hazards, OSHA administers regulations and has the ability to levy penalties. One way it does these things is worksite inspections. During inspections, OSHA inspectors assess workplace conditions, review safety records, and interview employees to ensure employers are in compliance with regulations. During these inspections, just who can accompany the inspector?

Generally, employees want someone to be there during OSHA worksite inspections to ensure their rights are protected. The OSHA regulations, specifically 29 CFR 1903.8(c), explicitly state that employee representatives “shall be employees of the employer.” OSHA has long permitted employees to have third parties as representatives. However, in 2017’s National Federation of Independent Business v. Dougherty, a Texas federal court interpreted the regulation’s language narrowly, concluding that only employees of the employer can participate in these inspections.

OSHA Final Rule

On March 29, 2024, OSHA released a final rule to clarify who can accompany an OSHA compliance officer during a worksite inspection. The old regulation only authorized non-employees if they were deemed reasonably necessary based on their technical expertise, giving the examples of an industrial hygienist or safety engineer. The new final rule removed those examples and added language that such third-party representatives may be reasonably necessary based on their “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.”

Some guidelines:

  1. The OSHA inspector must conclude that there is good cause for the non-employee to be at the inspection;
  2. The non-employee is subject to other inspection-related regulations, which allows the inspector to deny access if the representative unreasonably disrupts the employer’s operations or interferes with the inspection; and
  3. This clarification does not supersede OSHA’s ability to inspect unannounced.

Takeaways

While these revisions don’t seem like a huge deal, the implications might be. OSHA’s summary and explanation for the final rule states that OSHA intends to permit “a wide variety of third parties” to attend workplace inspections, including “those from unions or worker advocacy groups.” That means we could start seeing union representatives without any technical expertise accompanying OSHA inspectors, even in non-unionized workplaces. Additionally, the amendment further opens the door for plaintiff-side “experts” to join a workplace inspection.

While the full implications of this development remain to be seen, it should serve as another reminder that the nationwide push for unionization continues. Employers should keep an open line of communication with employees and be sure they are addressing safety issues and other workforce concerns on the front end. 

This final rule becomes effective on May 31, 2024. Stay tuned. 

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Photo of Whitney J. Jackson Whitney J. Jackson

Whitney Jackson’s practice focuses on commercial litigation, employment, and intellectual property matters.

Whitney earned her J.D. (cum laude) from the University of Mississippi School of Law, where she served as associate articles editor of the Mississippi Law Journal, senator of…

Whitney Jackson’s practice focuses on commercial litigation, employment, and intellectual property matters.

Whitney earned her J.D. (cum laude) from the University of Mississippi School of Law, where she served as associate articles editor of the Mississippi Law Journal, senator of the Student Bar Association, and vice president of the Black Law Students Association. While in law school, Whitney interned with the legal departments of Fortune 500 companies, where she assisted senior management in researching and analyzing various legal compliance matters. Whitney also interned with the University of Mississippi’s Office of Technology Commercialization, where she assisted potential patent-applicants in prior-art searches and patent development. She earned her Bachelor of Science (magna cum laude) degree in Biochemistry from Alcorn State University.

Photo of DeMario Thornton DeMario Thornton

DeMario Thornton is an associate in the firm’s Construction and Litigation practice Groups, where he assists clients throughout the arbitration and litigation process. DeMario also assists clients faced with OSHA citations.

Photo of Anne Knox Averitt Anne Knox Averitt

Anne Knox Averitt is a labor and employment and litigation partner in the Birmingham office. She represents governmental and corporate clients in a number of industries, including automotive, natural resources, manufacturing, health care, non-profit, employee staffing, housing compliance, communications, federal contracting, construction, and…

Anne Knox Averitt is a labor and employment and litigation partner in the Birmingham office. She represents governmental and corporate clients in a number of industries, including automotive, natural resources, manufacturing, health care, non-profit, employee staffing, housing compliance, communications, federal contracting, construction, and financial services. She has helped to obtain favorable resolution for matters at all stages, from dismissal on the initial pleadings to a defense jury verdict.

Photo of Anne R. Yuengert Anne R. Yuengert

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and…

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators, administrative law judges and federal and state court judges. She has tried more than 30 cases to verdict.