DOL again proposes allowing union reps to join OSHA inspectors on walk

The Department of Labor has proposed that its rules be revised to allow an employee-chosen representative, including a union official, to participate in physical workplace inspections conducted by the Occupational Health and Safety Administration, the agency announced Tuesday.

The proposed rule, which would require an amendment of OSHA’s regulations, states that employees may authorize either an employee or a “non-employee third party,” such as a union representative, to accompany the inspector on a walk-through if that third party is determined to be “reasonably necessary” to aid in the inspection.

“Third-party representatives may be reasonably necessary because they have skills, knowledge or experience that may help inform the compliance officer’s inspection,” the DOL said in its announcement. “This information may include experience with particular hazards, workplace conditions or language skills that can improve communications between OSHA representatives and workers.”

The inspector, but not the employer, would need to approve a nonemployee’s participation, according to Bloomberg Law. “For example, with an inspector’s OK, a community activist might participate in the inspection of a non-union construction site or a union headquarters safety expert could join the inspection of a unionized factory,” the news outlet reported.

Similar rulemaking also was proposed by the Obama administration, only to be rejected during the Trump era. But the Biden administration has picked up the baton once again, according to the US Chamber of Commerce.

The organization is not keen on the DOL proposal. Allowing union representatives to tag along on nonunion workplace inspections could create a host of problems, the chamber’s Marc Freedman, VP of employment policy, stated in a blog post published in June.

“This would also inject OSHA into a labor dispute, something that OSHA’s Field Operations Manual advises against. OSHA should not take sides, or be perceived as taking sides, in promoting union organizing agendas to the detriment of management,” he wrote.

The DOL said the proposal honors the intent of Congress to support ​​worker participation in workplace safety and health inspections when it passed the Occupational Safety and Health Act.

“This proposal aims to make inspections more effective and ultimately make workplaces safer by increasing opportunities for employees to be represented in the inspection process,” said Doug Parker, assistant secretary for occupational safety and health.

Employers have been advised to expect more executive action and regulation — including inspections — and less legislation from OSHA this year, panelists in a Fisher Phillips webinar told listeners in March. With a 3.3% bump in its budget from last year, and after devoting 19% of its 2022 budget to hiring more inspectors, one panelist said that employers should be ready for inspections in 2023, McKnight’s Senior Living reported at the time.