Both employers and their employees are entitled to have representation during Occupational Safety and Health Administration inspections, according to a final rule published today in the Federal Register by the Department of Labor.
The rule will go into effect May 31.
It allows a nonemployee, such as a union representative, to accompany inspectors during a walk-around. Previous regulations gave inspectors discretion in deciding whether a third-party could participate, according to Safety + Health.
“Worker involvement in the inspection process is essential for thorough and effective inspections and making workplaces safer,” Assistant Secretary for OSHA Doug Parker said in a statement. “The Occupational Safety and Health Act gives employers and employees equal opportunity for choosing representation during the OSHA inspection process, and this rule returns us to the fair, balanced approach Congress intended.”
For nonemployee representatives to accompany compliance officers in workplaces, they must be “reasonably necessary” to conduct effective and thorough inspections, OSHA said.
“Keep in mind that employers have Fourth Amendment and state property rights, and nothing in the proposed new rule changes that. Even under the new rule, OSHA can only inspect worksites with the employer’s consent unless the agency has a warrant,” attorneys from Fisher Phillips wrote in an article published Thursday in JD Supra.
The attorneys encouraged employers to keep on top of OSHA inspections by formulating plans in advance. For example, they said, employers could name one supervisory employee to be the point of contact “and ensure OSHA’s inspector stays within the inspection’s scope.” Also, the law firm advised, companies should provide only the forms required not allow inspectors to interview managers and supervisors on inspection day.
Even with the new rule, it is possible for companies to refuse requests for third parties to accompany OSHA in certain circumstances, according to Fisher Phillips
“One option is to advise the OSHA compliance officer that they may conduct their inspection, but you are choosing to deny entry to any third party,” the attorneys said. “You have the Fourth Amendment right to refuse a walkaround inspection on any basis and require OSHA to get a warrant to conduct its inspection.”
The law firm encouraged employers to seek advice from counsel before taking that step, however.
It’s likely that companies will see an increase in labor actions and unionization as the new final rule comes into play, the attorneys said.
Nursing homes with unionized workforces have higher compliance rates with federal safety laws, making for safer environments in “one of the most dangerous workplaces in the country,” according to research published in September.
