OSHA finalizes controversial inspection rule

OSHA early this month issued a final rule, effective May 31, 2024, that allows “third parties” to accompany inspectors during onsite inspections.

Background: Under current law, an employee representative can join an OSHA inspector during a physical inspection, but the representative must be a current employee. 

What’s happening: The new rule expands this, stating that “the representative(s) authorized by employees may be an employee of the employer or a third party.”

• Inspectors will have the authority to include anyone they deem "reasonably necessary" to conduct an inspection, including non-employees.

• “OSHA will allow for ‘a wide variety of third parties,’ including ‘those from unions or worker advocacy groups,’” said law firm Morgan Lewis.

The backlash: Two notable concerns have surfaced: workplace disruptions and privacy issues.

• “Employers should expect and prepare for more complaints by labor organizers and others who seek to gain access to employers’ private property,” Morgan Lewis wrote.

• “Employers should also be aware of how the rule could impact access to company confidential, trade secret, and proprietary information where nonemployees, who could even be employed by competitors, would be able to participate in worksite inspections.”

Of note: The rule, however, does not permit third parties to sit in on employee interviews during inspections. 

Looking ahead: “In the meantime, consider reviewing your current safety inspection processes and how you manage external visitors to your worksites,” ACCA’s Chris Czarnecki said in a members-only post. 

• The rule takes effect May 31st, but it’s expected to be challenged in court before then.