A controversial rule designed to broaden employees’ rights to allow outside representatives – including labor union representatives – to join them during safety inspections will take effect May 31, 2024.
The Department of Labor Occupational Safety and Health Administration (OSHA) recently released a final rule amending the Occupational Safety and Health (OSH) Act of 1970, clarifying who can serve as an employee representative to accompany the OSHA Compliance Safety and Health Officer (CSHO) during physical workplace inspections.
The rule revives policy that was originally implemented in 2013, then later rescinded due to a lawsuit that argued the regulation should have undergone formal rulemaking, according to an article published in Engineering News-Record.
The final rule amends the OSH Act to state that “[t]he representative(s) authorized by employees may be an employee of the employer or a third party.”
Employees may bring in outside representatives to accompany OSHA inspectors during the workplace's physical inspection. This representative can now include anyone with “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.”
The CSHO, however, retains their authority to determine whether good cause has been shown why a third-party representative is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”
“...these clarifications aid OSHA’s workplace inspections by better enabling employees to select representative(s) of their choice,” OSHA concluded in its ruling. “[This ensures that] OSHA obtains the necessary information about worksite conditions and hazards.”
Contractors pushed back vehemently against the rule when it was first proposed, with many arguing that it conflicts with the National Labor Relations Act and ignores the rights of employees who have chosen not to have union representation.
When the rule was first proposed, the Associated Builders and Contractors (ABC) issued a statement saying that “This power grab does nothing to promote workplace health and safety...,” adding that “OSHA can have a bigger impact on jobsite safety by fostering positive partnerships with employers and promoting safety practices that produce results.”
One of the biggest concerns cited by employers is that the rule could lead to one of these representatives obtaining sensitive information that could hurt the employer during a union organizing campaign or employee lawsuit.
In an article on the American Society of Employers’ website, Greg Sizemore, Vice President of Health, Safety, Environment and Workforce Development for ABC said that “By allowing outside union agents 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.”
In stark contrast, leaders of the National Council for Occupational Safety and Health (National COSH) said that the rule will improve workplace safety and reduce on-the-job hazards.
“...By giving workers a stronger voice in inspecting their workplaces and correcting preventable hazards, OSHA’s new walkaround rule can play an important role in reducing the risk of occupational illnesses, injuries and fatalities,” National COSH Co-Executive Director Jessica E. Martinez said in a statement. “With a trusted worker representative onsite, safety inspections can more effectively capture the first-hand knowledge workers have about work processes and potential hazards. A representative selected by workers can also bridge language barriers and reduce the fear of retaliation, which is often a major barrier in gathering accurate information about workplace conditions...”
Though the new rule will soon go into effect, many experts believe that the matter is far from settled. Labor law firm Proskauer Rose LLP issued a statement saying that “it bears watching whether the final rule will be challenged in federal court, as many other recent agency rule pronouncements – particularly by the National Labor Relations Board – have been challenged.”
The firm’s statement continued: “If the rule survives challenge (or if it is not challenged at all), then employers should be aware of the upcoming change in the law in less than 60 days, which will broaden employees’ rights during safety inspection reviews, and which may provide union access rights to the workplace that may not have previously been available under labor law or applicable collective bargaining agreements.”
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