Trent Cotney, Partner, Adams and Reese LLP
As you may have heard, in August 2023 the Occupational Safety and Health Administration (OSHA) proposed a new rule titled Worker Walkaround Representative Designation Process. It would amend 29 CFR § 1903.8 Representatives of Employers and Employees, allowing third parties to serve as designated employee representatives to accompany OSHA officers during inspections.
At present, § 1903.8 stipulates that “The representative(s) authorized by employees shall be an employee(s) of the employer.” The proposed rule summary reads in part:
…representative(s) authorized by employees may be an employee of the employer or a third party; such third-party employee representative(s) may accompany the OSHA Compliance Safety and Health Officer (CSHO) when they are reasonably necessary to aid in the inspection. OSHA is also proposing clarifications of the relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills of third-party representative(s) authorized by employees who may be reasonably necessary to the conduct of a CSHO’s physical inspection of the workplace. OSHA has preliminarily determined that the proposed changes will aid OSHA’s workplace inspections by better enabling employees to select a representative of their choice to accompany the CSHO during a physical workplace inspection.
In October 2023, the U.S. Small Business Administration (SBA) Office of Advocacy hosted a roundtable attended by nearly 90 small business representatives, as well as labor advocates and union representatives, to discuss the new rule. Many of the small business representatives raised concerns. The Office of Advocacy then wrote to OSHA, summarizing that opposition and asserting that the proposed rule “exceeds OSHA’s statutory authority and will impose clear and quantifiable costs of screening, processing and accompanying these additional third parties into the workplace during the inspection and related activities.” The letter explains that employers will incur costs related to additional security and screening, employee training on third-party policies, protecting confidential information, purchasing additional insurance, legal consultation and other considerations.
In addition, the letter noted that many small businesses were alarmed that third-party representatives would not only accompany an OSHA inspector but also participate in the inspection. It asked for clarification about what such participation would entail.
Associated Builders and Contractors (ABC) also opposes the proposed rule and issued a statement that quoted ABC Vice President Ben Brubeck, “ABC is deeply disappointed that the Biden administration is trying to revive a failed Obama-era initiative, which was bad policy then and is bad policy now. This proposal does nothing to promote workplace safety and it will have a substantial negative impact on the rights of employers and their employees.”
Brubeck went on to say, “By allowing outside union representatives access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law.”
It will be interesting to see if this proposed rule is finalized and if OSHA addresses the cost issues. If third-party representatives are allowed to accompany CSHOs and participate in inspections, employers will have many factors to consider. They may well have to manage union officials being present on their job sites.
The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Trent Cotney is a partner and Construction Practice Group Leader at the law firm of Adams and Reese LLP and FRSA General Counsel. You can contact him at 813-227-5501 or trent.cotney@arlaw.com.
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