Virginia Lawyers Weekly//September 20, 2023
Virginia Lawyers Weekly//September 20, 2023//
Late last month, the Occupational Safety and Health Administration (OSHA) issued a proposed rule that would expand the third parties who could participate in an OSHA inspection.
Specifically, the rule would give a designated employee representative the right to accompany an OSHA inspector on a walkaround, regardless of whether the representative is your employee.
OSHA’s proposed rule alters the current legislation by removing the requirement that an employee representative be an employee of the company under inspection. Now the proposed rule reads: “The representative(s) authorized by employees may be an employee of the employer or a third party.”
The proposed rule indicates that the OSHA inspector has discretion to allow a third-party representative if “good cause has been shown why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (e.g., because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills).”
Historically, the proposed rule can be linked back to 2013 when OSHA issued the “Fairfax Memo,” an interpretation that would have allowed union representatives to participate in OSHA inspections at non-union workplaces. Critics argued that the memo was an agency overreach in that it altered guidelines without going through the formal rulemaking process. The Fairfax Memo faced mounting legal challenges before it was officially rescinded in 2017.
If the new rule is finalized, analysts suggest it will likely be challenged in court as well. Employer concerns include the protection of trade secrets, the risk of advocacy group influence, and whether information gathered could be used to support union organizing or even provide evidence in a personal injury suit.
With potential rule changes on the table, employers should review their procedures and plans for an OSHA inspection. You may be able to deny third-party access to certain areas of the facility protected as a trade secret. Likewise, you have the right to deny an inspection and require OSHA to get a warrant.
Consider creating an employee safety committee as well, if you don’t already have one. The presence of a safety committee could reduce the chance that an OSHA inspector would consider an outside representative to be “reasonably necessary.” Arguably, your safety committee chair should be able to serve as employee representative.
Overall, it’s a good idea to know your rights have your response plan prepared, before OSHA and any designated “third parties” come calling.