Union Representatives May Attend OSHA Workplace Inspections
On April 1, 2024, the U.S. Department of Labor issued a Final Rule “clarifying the rights of employees to authorize a representative to accompany an OSHA compliance officer during an inspection of their workplace.” Such representatives include union representatives, of course – an unsurprising development under the administration of the self-proclaimed “most pro-union” President.
The Occupational Safety and Health Act allows representatives of employers and employees to accompany the OSHA Compliance Safety and Health Officer (CSHO) conducting a physical inspection of a worksite. Until now, representatives were limited to employees of the company, while third parties such as industrial hygienists or safety engineers (and other formally credentialled experts) would be permitted where the CSHO determined that they were “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”
Under the Final Rule, however, a third-party employee representative may now accompany the CSHO when, in the CSHO’s judgment, good cause has been shown why they are reasonably necessary. This assessment may be based on factors including but not limited to “their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.” Of course, this change in language means that the employee representative no longer needs to be an employee and may be a union representative.
The FAQs regarding the new Final Rule provide that the CSHO may ascertain whether employees have such a representative by asking if employees are represented by a union. If so, the highest-ranking union official or union employee representative on-site will designate the employee representative. Additionally, the representative may ordinarily wear clothing with a union name or logo. If the third-party representative is coming from off-site, the CSHO will normally delay the inspection for up to an hour to allow them to attend.
In its FAQs, the DOL acknowledges that employers may still limit entry of employee representatives into areas containing trade secrets. In addition, employer permission is required if the representative wishes to take their own photos or measurements, unless otherwise specified by a collective bargaining agreement. Employers may also require third-party representatives to comply with its established lawful rules and policies, including entry or confidentiality requirements, as long as such compliance is consistently required for all visitors to the workplace. Any confidentiality agreement may not restrict the representative’s ability to discuss information with employees affected by the inspection, however.
