OSHA recently issued a letter of interpretation that allows union representatives and other non-employee third parties to accompany OSHA inspectors on walk-around inspections of non-union workplaces. The applicable OSHA regulations provide that workers may designate an employee of the facility to participate in the walk-around inspection, unless there is good cause shown that a third party is “reasonably necessary” to conduct a thorough and effective physical inspection.
OSHA has broadly interpreted this language such that a third-party representative is “reasonably necessary” when they will make a positive contribution to a thorough and effective inspection.
The NASF has joined the Coalition of Workplace Safety (CWS) in opposing OSHA’s interpretation. On June 12, 2013 the 56 organizations in the CWS sent a letter to Dr. David Michaels, Assistant Secretary of OSHA, stating the rationale of why this interpretation is inconsistent with OSHA’s statutory and regulatory requirements and represents bad public policy.
Practical Steps Employers Can Take
In issuing this new interpretation, OSHA has raised more questions than it has answered. As these issues are being addressed, there are several practical steps that employers can consider when a third party arrives with an OSHA inspector for a walk-around inspection at the workplace. The practical steps are presented merely as general guidance, employers should consult with their legal counsel for the specific application to each individual situation.
- First, ask for the credentials for every person that is with the OSHA inspector to determine each individual’s affiliation.
- Second, you may consent to the OSHA officials accessing the facility for a walk-around inspection, but deny access to third parties that are not government officials or contractors.
- If the OSHA inspector has a warrant for the inspection, check to see if the warrant covers the third parties present. If not, then you may deny access to the third parties.
- If the warrant does include third parties, you may want to consider challenging the warrant’s application to those third parties before a magistrate before allowing access to third parties.
- If you allow third parties access for the walk-around inspections, you may want to limit the third parties’ participation as summarized below.
- Limit the third parties’ access to only the walk-around inspection – no participation in pre- and post-inspection conferences and no interviews with employees
- Require third parties to sign Confidentiality Agreements and a Waiver of Liability (consistent with what applies to OSHA officials)
- Require third parties to wear appropriate personal protective equipment (PPE) during the walk-around inspection
- Require third parties to undergo applicable safety training prior to walk-around inspection
- Do not allow third parties to take photographs or videos or take samples during the walk-around inspection
Because OSHA’s new interpretation appears to open novel legal issues, it is not clear how OSHA will choose to implement this new approach. The NASF will continue to work as part of the CWS to oppose the inappropriate application of this new interpretation. In the meantime, employers can take reasonable and appropriate measures to minimize unnecessary and intrusive walk-around inspections pursuant to OSHA’s letter of interpretation.
If you have any questions or would like more information regarding OSHA’s letter of interpretation on inspections, please contact Jeff Hannapel with NASF at email@example.com.