OSHA, the Occupational Safety and Health Administration, is finalizing a new rule that allows workers to choose a union rep to accompany OSHA inspectors during a facility tour. This rep doesn’t have to be an employee, and your facility doesn’t need to be a union shop.
The White House budget office finished its review just a few days ago, which means that the final regulation could be published anytime in the Federal Register. Therefore, it’s important to follow this guideline to be prepared.
Understanding Your Rights
OSHA’s new rule removes regulatory requirements that an employee representative must be an employee of the employer being inspected. In the new proposed rule, the representatives authorized by employees can be either an employee of the employer or someone from a third-party. The third-party can assist in an inspection based on their knowledge, skills, and experiences working in similar industries.
Although this is the new proposed rule, it’s important to remember that the Fourth Amendment and other state property rights exist, which protects employers. Under the new rule, OSHA can only inspect with the employer’s consent unless there is a warrant.
Prepare for OSHA’s Inspection
Before OSHA arrives for an inspection, be sure to review all procedures and create a plan.
For example, a business can designate someone as the supervisor and point of contact for OSHA when they arrive. A designated manager should also be present with every OSHA compliance officer during the entire inspection. Be prepared to comply when OSHA asks for side-by-side photos, sample tests, or testing.
4 Steps to Surviving an OSHA Inspection
Four tips that are essential to know:
- Do not allow OSHA to interview a manager or supervisor when they arrive.
- Only give OSHA 300 logs, 300A summaries, 300 forms, and any relevant safety data sheets that same day—nothing else.
- Direct the OSHA inspector to the exact area where the complaint was filed, and then walk them away from that area.
- Make sure no employees perform high-risk activities while OSHA is present.
Protect Your Business
Even if you have not yet fully developed your on-site procedures, it is important to ensure that management understands which areas on the worksite may contain confidential information or trade secrets that you do not want third parties to access or see.
Have a Safety Committee
Consider establishing a safety group if your workplace does not already have one.
This committee would arguably hold the representative role in walkaround inspections. Also, instead of a member from a union, employees may choose to designate a member of the safety committee as their representative.
When setting up safety committees, it is important to be aware of the National Labor Relations Act and the unfair labor practices that may arise if the committee is not implemented properly.
Refusing Third-Parties
If you decide to refuse third-party requests to accompany OSHA, you can tell the OSHA officer in charge of compliance that you will not allow any third parties to enter. The Fourth Amendment gives you the right to refuse any walkaround inspection. However, you should be aware that OSHA could treat this refusal of a third-party on-site as a “refusal of entry” and request a warrant.
Increase in Labor Actions and Union Organizing
With everything going on right now, responding immediately to union organizing is important.
To be more prepared, create an action plan. You may want to start by establishing effective lines of communication, implementing work-related policies, and having a process for handling complaints.