Source: sarawut20003 (Envato Elements)
Since the Occupational Safety and Health Act was enacted in 1970, its section on inspections has remained largely unchanged – but not unchallenged.
The way it is written leaves room for interpretation and, in some people’s opinion, potential abuse because of its lack of specificity.
The current controversy, however, mostly comes down to semantics.
What the Worker Walkaround Rule Says
The inspection section (section 8) of the Act imposes requirements on OSHA compliance officers coming onto an employer’s worksite and conducting an inspection. One of requirements concerns who a compliance officer can bring onto the worksite – and who they cannot.
There are a variety of reasons an inspector may decide to bring someone along during the inspection, but the controversy is concerned with the who and the how of the process.
In its current form (which, again, has been static for over 50 years), the rule states that the person accompanying the OSHA compliance officer must be an employee of the employer or a non-employee third party selected by the employees. The compliance officer’s judgment determines whether the party is reasonably necessary or not, and they have the final word.
The current wording provides two examples of technical specialists (industrial hygienists and safety engineers) who could accompany a compliance officer during their inspection. These examples are meant to provide additional clarity, but for some it has simply made the clause more confusing.
OSHA’s Proposed Update
The proposed change includes rewording the following clause:
“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 change would reword the first sentence to read “The representative(
s) authorized by employees may be an employee of the employer or a third party.”
It would also delete the examples (“safety engineer” and “industrial hygienist”) to broadly include anyone reasonably necessary in the CHSO’s judgement, because of their “relevant knowledge, skills, or experience with hazards and conditions in the workplaces, or language skills.” The third party must still be employee-selected and authorized by the CHSO.
Why Is the New Wording Controversial?
If you read those changes and noticed it doesn’t really change anything, I think we’re on the same page. The preamble of every article that I researched on this topic (mainly from law firm websites) couched it as a substantial broadening of the definition, opening the doors to any ne’er-do-well who wanted access to a site; the main boogeyman being union representatives. They say this change “expands the definition to include third parties” (it doesn’t, they were already included) and “removes the limitation to technical experts” (which was never a limitation, just two examples).
The controversy stems from a disagreement over a letter of interpretation from 2013 known as the “Sallman Letter” (or the Fairfax Memo), which stated specifically that a non-employee union representative may act as a third party in a non-union workplace. This resulted in a lawsuit by the National Federation of Independent Business, and a circuit court decision that upheld the OSHA interpretation insofar as it agreed any third party may accompany the inspection if it meets the two stated requirements.
As it stands, the Act states that the accompanying party can be anyone chosen by employees who the inspector agrees is reasonably necessary. Following this proposed update, it will still state the same thing, only in slightly broader language.
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