No one really looks forward to an Occupational Safety and Health Act (OSHA) inspection.  They can be intrusive, and lead to both warnings and fines that no one wants to deal with.  They give OSHA Compliance Safety and Health Officers (CSHO’s) the opportunity to physically inspect the workplace to observe any safety deficiencies.  Recently, the Department of Labor promulgated a rule pertaining to the allowance of an employee representative during these safety inspections.

The concept of an employee representative accompanying the CSHO during an inspection is not new.  It was originally included in the OSH Act in 1970.  Both employers, as well as employees, are given the opportunity to have a representative accompany the CSHO during their inspection.  However, in 2017, a court determined that based on the plain language of the Act, it was a requirement that the employee representative actually be an employee.

However, the Department of Labor found benefit in allowing an employee representative from outside an organization to participate in the workplace inspection, if that third party has the expertise necessary to assist with the inspection.  As a result, beginning May 31, 2024, an outside party may be selected by employees to accompany OSHA inspectors in their workplace inspections.

Now, it isn’t just any joe-schmoe off the street who gets to come in and walk around with the CSHO.  Third-party representatives may accompany the CSHO when good cause has been shown why they are reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.

Now who makes the determination as to whether good cause is shown?  It’s the CSHO.

It must determine whether the individual is reasonably necessary to conduct an effective and thorough inspection of the workplace, and may deny the right of accompaniment to any individual whose conduct interferes with a fair and orderly inspection.  Inspections continue to preclude unreasonable disruption of the operations of the employer’s workplace, and employers may continue to limit entry of employee representatives into work areas that contain trade secrets.

However, the brief reprieve employers received from having outside parties accompany OSHA inspectors no longer exists.  If employees can prove the utility in having an outsider along for the inspection, employers will likely have to open their doors to them.

It is important for employers to know their rights and the rights of their employees when it comes to workplace inspections.  If you, or your organization need assistance in dealing with safety agencies, contact Wiley Reber Law, for legal advice that works.