A U.S. Department of Labor Occupational Safety & Health Administration (“OSHA”) proposed rule released August 29 will broaden the range of individuals that can act as third party representatives of employees in an OSHA investigation.
OSHA gives the employer and employees the right to have a representative authorized by them accompany OSHA officials during a workplace inspection to aid the investigation. Employee participation and representation is critical to an inspector’s ability to complete a thorough and effective workplace investigation and helps OSHA gather information about the job site’s conditions and hazards.
The Worker Walkaround Representative Designation Process Proposed Rule released August 30, 2023 won’t change existing regulations that give OSHA compliance officers the authority to determine if an individual is authorized by employees and to prevent someone from participating in the walkaround inspection if their conduct interferes with a fair and orderly inspection, or to limit participation to protect employer trade secrets.
However, the proposed regulations will clarify third-party representatives allowed to accompany OSHA compliance officers during physical workplace inspections are not limited to industrial hygienists or safety engineer. Rather the prosper rule would also allow an employee to be accompanied by another employee, or non-employee third party if the compliance officer determines the third party is reasonably necessary to conduct an effective and thorough inspection.
Examples in the proposed rule suggest a third-party representatives may be reasonably necessary because it has skills, knowledge or experience that may help inform the compliance officer’s inspection. Such as experience with particular hazards, workplace conditions or language skills that can improve communications between OSHA representatives and workers.
OSHA is seeking public comment on the criteria and degree of deference OSHA should give to employees’ choice of representative in determining whether a third party can participate in an inspection and other aspects of the proposed rule.
Submit comments at Regulations.gov, the federal eRulemaking portal by October 30, 2023. Include Docket Number OSHA-2023-0008 on all submissions. Read the Federal Register notice for more information.
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