Last week, the federal Occupational Safety and Health Administration issued proposed regulations that would allow a wide range of third-party representatives to accompany OSHA investigators during workplace investigations. OSHA rules currently allow an employee who is a union representative to participate in the investigation. In 2013, OSHA attempted to broaden this participation right to include union representatives, even if those representatives were not employed by the company. A federal court rejected this move, concluding that any such change needed to be made through the formal rulemaking process.
The new OSHA proposal would do just that. In addition to union representatives or experts hired by unions, the rule would give the OSHA investigator broad discretion to allow participation in the inspection by a wide range of outsiders, including experts retained by employees and members of advocacy groups. The investigator could allow such participation by concluding that it is reasonably necessary to conduct the inspection.
This proposal raises numerous issues for employers. Could union participation in the inspection be used to gather information to advocate for organization of a non-unionized workplace? Could an injured employee request that their lawyer or expert participate in the inspection for purposes of gathering evidence for a personal injury suit against the employer or third party? How would OSHA effectively protect the employer from disclosure of trade secrets to third parties allowed on its premises? Would the outside expert or advocacy group influence the conclusions of the inspection and any citations issued against the employer?
If finalized, employers are likely to challenge in court the ability of OSHA to force them to open their workplace to third parties with potentially adverse legal and business objectives. Instead of essentially outsourcing experts for workplace inspections, OSHA could work to better recruit, train, and retain inspectors with the necessary knowledge to fulfill the agency’s legislative objectives. OSHA is accepting comments on the proposed rule through October 30.
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