Worker Walkaround Representative Designation Process

<RULE> DEPARTMENT OF LABOR <SUBAGY>Occupational Safety and Health Administration</SUBAGY> <CFR>29 CFR Part 1903</CFR> <DEPDOC>[Docket No. OSHA-2023-0008]</DEPDOC> <RIN>RIN 1218-AD45</RIN> <SUBJECT>Worker Walkaround Representative Designation Process</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Occupational Safety and Health Administration (OSHA), Labor. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> In this final rule, OSHA is amending its Representatives of Employers and Employees regulation to clarify that the representative(s) authorized by employees may be an employee of the employer or a third party; such third-party employee representative(s) may accompany the OSHA Compliance Safety and Health Officer (CSHO) when, in the judgment of the CSHO, good cause has been shown why they are reasonably necessary to aid in the inspection. In the final rule, OSHA also clarified that a third party may be reasonably necessary because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills. OSHA concluded that these clarifications aid OSHA's workplace inspections by better enabling employees to select representative(s) of their choice to accompany the CSHO during a physical workplace inspection. Employee representation during the inspection is critically important to ensuring OSHA obtains the necessary information about worksite conditions and hazards. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> <E T="03">Effective date:</E> This final rule is effective on May 31, 2024. <E T="03">Docket:</E> To read or download comments or other information in the docket, go to Docket No. OSHA-2023-0008 at <E T="03">https://www.regulations.gov.</E> All comments and submissions are listed in the <E T="03">https://www.regulations.gov</E> index; however, some information ( <E T="03">e.g.,</E> copyrighted material) is not publicly available to read or download through that website. All comments and submissions, including copyrighted material, are available for inspection through the OSHA Docket Office. Contact the OSHA Docket Office at (202) 693-2350 (TDY number 877-889-5627) for assistance in locating docket submissions. When citing exhibits in the docket in this final rule, OSHA includes the term “Document ID” followed by the last four digits of the Document ID number. Citations also include, if applicable, page numbers (designated “p.”), and in a limited number of cases a footnote number (designated “Fn.”). In a citation that contains two or more Document ID numbers, the Document ID numbers are separated by semi-colons ( <E T="03">e.g.,</E> 0001; 0002). </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> <E T="03">Press inquiries:</E> Frank Meilinger, Director, OSHA Office of Communications, telephone: (202) 693-1999; email: <E T="03">meilinger.francis2@dol.gov.</E> <E T="03">General and technical inquiries:</E> Scott Ketcham, OSHA Directorate of Construction, telephone: (202) 693-2020; email: <E T="03">ketcham.scott@dol.gov.</E> <E T="03">Copies of this</E> <E T="7462">Federal Register</E> <E T="03"> notice and news releases:</E> Electronic copies of these documents are available at OSHA's web page at <E T="03">https://www.osha.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Executive Summary</FP> <FP SOURCE="FP-2">II. Background</FP> <FP SOURCE="FP1-2">A. The OSH Act and OSHA's Inspection Authority</FP> <FP SOURCE="FP1-2">B. Regulatory History and Interpretive Guidance</FP> <FP SOURCE="FP1-2">C. Litigation and Subsequent Agency Enforcement Actions</FP> <FP SOURCE="FP-2">III. Legal Authority</FP> <FP SOURCE="FP-2">IV. Summary and Explanation of the Rule</FP> <FP SOURCE="FP1-2">A. The Need for and Benefits of Third-Party Representation</FP> <FP SOURCE="FP1-2">1. Comments Supporting Third-Party Representation</FP> <FP SOURCE="FP1-2">2. Comments Opposed to Third-Party Representation</FP> <FP SOURCE="FP1-2">3. Conclusion on the Need for and Benefits of Third-Party Representatives</FP> <FP SOURCE="FP1-2">B. The “Good Cause” and “Reasonably Necessary” Requirement</FP> <FP SOURCE="FP1-2">1. Comments That Supported Removing the CSHO's “Good Cause” and “Reasonably Necessary” Determination Requirement in Some Form</FP> <FP SOURCE="FP1-2">2. Comments That Generally Supported Retaining the Existing “Good Cause” and “Reasonably Necessary” Requirement and Opposed the NPRM's Alternatives</FP> <FP SOURCE="FP1-2">3. Conclusion on the “Good Cause” and “Reasonably Necessary” Requirement</FP> <FP SOURCE="FP1-2">C. Role of the Employee Representative in the Inspection</FP> <FP SOURCE="FP1-2">D. Constitutional Issues</FP> <FP SOURCE="FP1-2">1. First Amendment Issues</FP> <FP SOURCE="FP1-2">2. Fourth Amendment Issues</FP> <FP SOURCE="FP1-2">3. Fifth Amendment Issues</FP> <FP SOURCE="FP1-2">4. Due Process Issues</FP> <FP SOURCE="FP1-2">5. Tenth Amendment Issues</FP> <FP SOURCE="FP1-2">E. National Labor Relations Act and Other Labor-Related Comments</FP> <FP SOURCE="FP1-2">F. Administrative Issues</FP> <FP SOURCE="FP1-2">1. Administrative Procedure Act</FP> <FP SOURCE="FP1-2">a. Consistency With the OSH Act</FP> <FP SOURCE="FP1-2">b. Consistency With Other OSHA Regulations</FP> <FP SOURCE="FP1-2">c. Basis for the Rule</FP> <FP SOURCE="FP1-2">d. Specificity of the Rule</FP> <FP SOURCE="FP1-2">2. Public Hearing</FP> <FP SOURCE="FP1-2">G. Practical and Logistical Issues</FP> <FP SOURCE="FP1-2">H. Liability Issues</FP> <FP SOURCE="FP1-2">I. Other Issues</FP> <FP SOURCE="FP-2">V. Final Economic Analysis and Regulatory Flexibility Act Certification</FP> <FP SOURCE="FP1-2">A. Introduction</FP> <FP SOURCE="FP1-2">B. Costs</FP> <FP SOURCE="FP1-2">1. Rule Familiarization</FP> <FP SOURCE="FP1-2">2. Training</FP> <FP SOURCE="FP1-2">3. Providing PPE</FP> <FP SOURCE="FP1-2">4. Policy Development, Revisions, and Planning</FP> <FP SOURCE="FP1-2">5. Legal Advice and Consultations</FP> <FP SOURCE="FP1-2">6. Insurance and Liability Costs</FP> <FP SOURCE="FP1-2">7. Protecting Trade Secrets and Confidential Business Information</FP> <FP SOURCE="FP1-2">8. Hiring Experts</FP> <FP SOURCE="FP1-2">9. Costs to State Plan States</FP> <FP SOURCE="FP1-2">10. Societal Costs</FP> <FP SOURCE="FP1-2">C. Benefits</FP> <FP SOURCE="FP1-2">D. Regulatory Flexibility Certification</FP> <FP SOURCE="FP1-2">E. Small Business Regulatory Enforcement Fairness Act</FP> <FP SOURCE="FP-2">VI. Office of Management and Budget (OMB) Review Under the Paperwork Reduction Act</FP> <FP SOURCE="FP-2">VII. Federalism</FP> <FP SOURCE="FP-2">VIII. State Plans</FP> <FP SOURCE="FP-2">IX. Unfunded Mandates Reform Act</FP> <FP SOURCE="FP-2">X. Consultation and Coordination With Indian Tribal Governments</FP> <FP SOURCE="FP-2">XI. Environmental Impact Assessment</FP> <FP SOURCE="FP-2">XII. List of Subjects</FP> <FP SOURCE="FP-2">XIII. Authority and Signature</FP> </EXTRACT> <HD SOURCE="HD1">I. Executive Summary</HD> Since the Occupational Safety and Health Act of 1970 (OSH Act or Act) was passed in 1970, section 8(e) of the OSH Act has required that, subject to regulations issued by the Secretary of Labor (via OSHA), a representative of the employer and a representative authorized by employees “shall” each have the opportunity to accompany OSHA during the physical inspection of the workplace ( <E T="03">i.e.,</E> “the walkaround”) for the purpose of aiding OSHA's inspection. One of section 8(e)'s implementing regulations, at 29 CFR 1903.8(c), provided that a representative authorized by employees “shall be an employee(s) of the employer.” However, that regulation also created an exception for “a third party who is not an employee of the employer” when, “in the judgment of the Compliance Safety and Health Officer, good cause has been shown” why the third party was “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace. . . .” 29 CFR 1903.8(c) (1971). The regulation pointed to two non-exhaustive examples—a safety engineer and an industrial hygienist. While OSHA has long permitted employee representatives to be third parties pursuant to 29 CFR 1903.8(c), in 2017, a district court concluded that interpretation was not consistent with the regulation. Because the first sentence of 1903.8(c) explicitly stated that employee representatives “shall be employees of the employer,” it rejected OSHA's interpretation as “flatly contradict[ing]” the regulation. <E T="03">Nat'l Fed'n of Indep. Bus.</E> v. <E T="03">Dougherty,</E> No. 3:16-CV-2568-D, 2017 WL 1194666, at *11 (N.D. Tex. Feb. 3, 2017) ( <E T="03">NFIB</E> v. <E T="03">Dougherty</E> ). However, the district court also recognized that OSHA's interpretation that third parties could be employee representatives was a “persuasive and valid” reading of section 8(e) of the OSH Act. Id. at 12. The court concluded that “the Act merely provides that the employee's representative must be authorized by the employees, not that the representative must also be an employee of the employer.” Id. This final rule has a narrow purpose and makes two changes to 1903.8(c). First, in response to the district court's decision, it clarifies that consistent with Section 8(e) of the OSH Act, employee representatives may either be an employee of the employer or a third party. Second, consistent with OSHA's longstanding practice, it clarifies that a third-party representative authorized by employees may have a variety of skills, knowledge, or experience that could aid the CSHO's inspection. The latter revision clarifies that employees' options for third-party representation during OSHA inspections are not limited to only those ind ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 336k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━