Contractors are pushing back against a proposed rule from the U.S. Department of Labor that would allow workers to select a representative employed by a third party to participate in workplace safety inspections.
The proposal revives Occupational Safety and Health Administration (OSHA) policy that was originally implemented in 2013, then later rescinded due to a lawsuit that argued the regulation should have undergone formal rulemaking, according to an article published on Engineering News-Record.
If approved, the rule would allow employees to authorize a non-employee as their representative on OSHA inspections. It also clarifies that third-party representatives are not limited to industrial hygienists and safety engineers, with OSHA saying they instead can be anyone with “knowledge, skills, or experience with particular hazards or conditions in the workplace or similar workplaces, as well as any relevant language skills a representative may have to facilitate better communication between workers and the [compliance safety and health officer].”
Doug Parker, Assistant Secretary for OSHA, said in a statement that “This proposal aims to make inspections more effective and ultimately make workplaces safer by increasing opportunities for employees to be represented in the inspection process.”
Dozens of industry trade associations cosigned comments submitted by the Construction Industry Safety Coalition (CISC) and Coalition for Workplace Safety (CWS) opposing the change. They argued that the proposal would conflict with the National Labor Relations Act and ignores the rights of employees who have chosen to not have union representation.
According to the CISC’s comments contractors have also expressed concern with how employees select a representative, how employers are notified about the choice and what obligations the employer has to the representative.
Concerns were also expressed by contractors over potential liability should the representative be injured while on the job site, and the amount of sensitive information the representative may be privy to that could hurt an employer during a union organizing campaign or employee lawsuit.
Greg Sizemore, Vice President of Health, Safety, Environment and Workforce Development for Associated Builders and Contractors (ABC), said that the proposal lacks clarity in numerous areas including how OSHA or an inspector would approve employees’ requests for a third-party representative, or any safety criteria for them.
“There is no restriction on the number of different third-party representatives who may be present for a single inspection, nor on how many employees may request different representatives,” Sizemore said.
John Surma and Savannah Selvaggio of labor and employment law firm Ogletree Deakins, wrote in a blog post on the firm’s website that the rule “will insert instability and unpredictability into the inspection process,” and that “That same instability is exactly why it is anticipated that there will be much litigation surrounding this issue.”
“In the meantime, it remains to be seen how employers, labor, and other interested parties respond to this notice with comments and litigation,” they added.
Over 65 workers’ and immigrant rights organizations voiced support for the rule, according to a press release issued by the National Council for Occupational Safety and Health (COSH).
“Millions of U.S. workers are injured on the job every year, thousands die from sudden workplace trauma, and tens of thousands lose their lives from long-term exposure to occupational hazards,” National COSH Co-Executive Director Jessica E. Martinez said in a statement. “When workers have a strong voice – including the right to choose their own representatives during OSHA inspections – we have a real chance to prevent injuries and fatalities and reduce the toll of pain and suffering on workers and their families.”
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Frequently Asked Questions
What is OSHA?
OSHA, or the Occupational Safety and Health Administration, is a federal agency of the United States Department of Labor. It was established to ensure safe and healthy working conditions for employees by setting and enforcing standards and by providing training, outreach, education, and assistance.
What is the purpose of OSHA?
The primary purpose of OSHA is to ensure that employers provide a workplace environment free from recognized hazards that could cause serious harm or death to workers. This is achieved through setting and enforcing standards, conducting inspections, providing training and education, and offering assistance to employers.
Who does OSHA apply to?
OSHA regulations apply to most private sector employers and their employees, as well as some public sector employers and workers in the 50 states and certain territories and jurisdictions under federal authority. Certain businesses may be exempt from OSHA regulations, such as self-employed individuals without employees and workplaces regulated by other federal agencies.
What are OSHA standards?
OSHA standards are rules that employers must follow to ensure safe and healthy working conditions. These standards cover a wide range of hazards, including but not limited to, chemical exposures, mechanical dangers, ergonomic issues, and risks related to specific industries. Employers are required to comply with these standards to protect their employees.
How does OSHA enforce its standards?
OSHA enforces its standards through workplace inspections, investigations of complaints or accidents, and outreach programs. Inspections may be conducted randomly, in response to a complaint, or as part of a special emphasis program targeting specific industries or hazards. Employers found in violation of OSHA standards may face penalties and citations.
What are the penalties for violating OSHA standards?
Penalties for violating OSHA standards can vary depending on the severity of the violation and the employer's compliance history. Penalties may include fines, citations, and requirements to correct hazards within a specified timeframe. In cases of willful or repeated violations, penalties can be more severe, including criminal prosecution.
