Audit, Compliance and Risk Blog

The Occupational Safety and Health Administration (OSHA) is authorized to inspect regulated workplaces, although it generally limits its inspections to workplaces deemed highly hazardous (often targeted sector-wide through National Emphasis Programs (NEPs) or their regional or state equivalents), or in response to complaints or reported incidents of injury or illness (I&I). OSHA regulations include inspection procedures (29 CFR 1903), which OSHA proposed on August 30, 2023 to clarify and revise slightly. The rest of this note summarizes OSHA’s procedures briefly, including the proposed changes.

How does OSHA inspect?

OSHA’s compliance safety and health officers (CSHOs) have broad authority to enter workplaces to evaluate compliance with any provision of the Occupational Safety and Health Act of 1970 (OSH Act) and OSHA regulations. OSHA’s Field Operations Manual (FOM), which compiles inspection and enforcement from OSHA to its CSHOs, sets forth the following inspection priorities:

1. imminent danger situations
2. follow-up after reports of fatalities or catastrophic injuries
3. complaints (usually from employees), and referrals from other agencies, organizations, or individuals
4. planned or programmed investigations at sites in a targeted sector (usually NEPs or other identified “high hazard” industries)

OSHA inspections generally are unannounced; arriving inspectors are to state the reason and target of the inspection, but are empowered “within reason” to go anywhere on a worksite and speak with any employer, agent or employee, and then to follow up on any additional hazards or potential hazards they encounter. Employers are not to bar or interfere with inspections (although procedures allow for trade secret claims), subject to follow-up enforcement by the agency. Inspectors must allow representatives of the employer and of employees to accompany the inspection – these are the provisions OSHA is proposing to revise.

What revisions is OSHA proposing?

Under OSHA’s existing rule (29 CFR 19038), inspectors generally defer to the employer’s nomination of an employer representative to accompany an inspection, but defers to employees’ nomination of an employee representative only if that nominee is an employee of the employer. CSHOs are to make their own determination of ‘good cause” for use of a non-employee. OSHA is now proposing two revisions, clarifying conditions for an “employee representative” who is not an employee of the employer under inspection to accompany an inspector. These proposed revisions are:

• rephrase from “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… [for an employee of a third party]” to instead say “may be an employee of the employer or a third party].
• add explanatory text for what constitutes “good cause” for a CSHO to choose to use an employee of a third party – “… good cause has been shown why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (e.g., because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills).”

These changes would tend to regularize the selection and use of personnel who are not employees of the employer under inspection. Examples might include translators if workers are non-English speaking, or technical experts.

What additional questions is OSHA asking, seeking formal comments?

OSHA is also soliciting “stakeholder input on regulatory options” regarding the use of employees of third parties. OSHA solicits comments on the following additional changes:

• should a CSHO defer to employee nomination of a non-employee “employee representative” without a separate good cause determination
• should OSHA revise the regulatory section to add a presumption that a nominated third party employee is reasonably necessary – thereby easing the standard for deciding “good cause”
• should OSHA expand the criteria for determining “good cause” to include circumstances where the CSHO determines that the presence of the third party employee “would aid employees in effective exercising their rights under the OSH Act”

OSHA asks that comments state why or why not a commenter recommends any of these changes, and asks for “information, examples, considerations and/or data” supporting a commenter’s response.

What happens next?

Comments are due by October 30, 2023, after which OSHA will consider further action.

Self-evaluation checklist

• Does the organization have internal policies and procedures to be employed during an OSHA inspection?
• If so, to these policies and procedures address the eligibility of “employee representatives” who might be identified to accompany an OSHA inspection?
• Is the organization preparing to comment on the present OSHA proposal?

Where can I go for more information?

• OSHA proposal (8/30/23 Federal Register) 
• OSHA “Enforcement” web portal (which includes information and links regarding inspections)
• OSHA, Field Operations Manual (CPL 02-00-164) (rev. 1/23/23) 

About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years. 

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: tei@ix.netcom.com