Proposed OSHA Rule Change: Using a 3rd Party Inspector

The Occupational Safety and Health Administration (OSHA) is proposing a revision to standard 29 CFR 1903.8 C that will clarify the conditions in which third party individuals can be representatives authorized by employees to accompany Compliance Safety and Health Officers during OSHA’s physical inspections of the workplace. OSHA is accepting comments until October 30, 2023.

Standard 29 CFR 1903.8 Currently states the following:

The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.

The revised standard would state the following:

(c) The representative(s) authorized by employees may be an employee of the employer or a third party. When the representative(s) authorized by employees is not an employee of the employer, they may accompany the Compliance Safety and Health Officer during the inspection if, in the judgment of the Compliance Safety and Health Officer, good cause has been shown why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (e.g., because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills).

The JD Supra article, “OSHA Proposes Rule to Allow Third Parties to Participate in Workplace Walkaround Inspections,” by Savannah Selvaggio and John Surma provides background information on the proposed revision and highlights the concerns of some employers who would be affected by the change. The article quotes an announcement made on January 4, 2023, in which OSHA states that their rulemaking will “clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer.”

The article explains that while OSHA is looking to clarify this right, some employers argue that the revision does not adequately define the term, “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” These employers are concerned that the ruling may create scenarios in which nonemployees (including competitors)  gain access to sensitive information that could have an adverse effect on the organization. Due to the differing perspectives on this issue, experts anticipate that interested parties will respond with a combination of comments and litigation until the October 30 deadline.

To learn about another OSHA initiative, see our article here.