The federal Occupational Safety and Health Administration (OSHA) has finalized a new rule allowing workers to designate a third-party representative to accompany any OSHA inspector during a facility inspection. Because the rule does not require the representative to be a company employee or the facility to be unionized, the opportunity for union representatives to fill the role is concerning. As such, ahead of the rules effective date of May 1, 2024, employers should understand their rights when it comes to OSHA inspections. Below are a few key points:

1. Federal and State Rights. The new rule provides that “the representative(s) authorized by employees may be an employee of the employer or a third party.” The rule also authorizes a third party who – based on their relevant knowledge, skills, experience, language or communication skills – can assist OSHA during the inspection. However, neither of these provisions changes an employer’s Constitutional protections provided under Fourth Amendment or state property rights.

Such rights – absent a warrant – allow an employer to control how OSHA enters its property and the areas that may be accessed during an inspection. Insisting the inspector obtain or produce a warrant is well within an employer’s rights. However, doing so carries its own risks and rewards making it important for employers to seek legal counsel before making such a request.

Employers also retain the right to secure access to areas of the worksite containing trade secrets or other confidential information. This includes limiting access by non-OSHA personnel and insisting that any photos in these areas be marked as “trade secret.”

2. Update or Review Existing Inspection Procedures. Every worksite should have a written plan outlining the procedures that must be followed when an OSHA inspector arrives. Plans should designate a primary (and secondary) supervisory employee to act as the company’s contact person for the inspection. This individual will be responsible for accompanying the investigator throughout the inspection, except during interviews with non-supervisory personnel who do not request a manager’s presence. The contact person does not necessarily need to be the company’s safety manager, but the individual does need to be trained on inspection procedures and must be ready to take notes and their own photos, samplings and tests alongside those taken by the inspector.

3. Understand the Practicalities of an Inspection. OSHA Inspection plans should include a few practical tips and reminders such as:

• Before an inspection begins it is permissible for the contact person to request that the inspector detail the scope of the inspection (e.g., the complaint(s) alleged, and the area(s) impacted).

• It is permissible for inspectors to be accompanied by a company representative throughout the entire inspection. The company contact should be trained and confident in the knowledge that it is their job not only to accompany inspectors but to get them from one area to the next by the most expedient route. There is no requirement to allow access to areas considered outside the scope of the inspection.

• It is permissible to prohibit interviews of managers or supervisors on the day of the inspection. Interviews cannot be flatly refused or postponed indefinitely, but nothing requires they be conducted on the day of the inspection.

• On the day of the inspection employers are allowed to limit documentation provided to just the company’s OSHA 300 logs, 300A summaries, 301 forms, and relevant safety data sheets. Other documents may be required but need not be provided absent advanced notice.

• Hazardous activities should be put on hold during the inspection.

4. Weigh – in Advance – the Risk of Refusing Access to Third-Party representatives. Before finalizing an inspection plan, employers should discuss with their legal counsel the risks associated with refusing to allow third-party representatives access alongside OSHA inspectors. Allowing the OSHA inspector but not third-party representatives could be interpreted by the OSHA inspector onsite as a complete refusal; even where the employer makes clear the prohibition applies only to the third-party. Even a perceived refusal could have the effect of requiring the inspector to obtain a warrant before proceeding. Since there are various risks associated with requiring a warrant before inspection, the issue should be discussed with counsel.

Having an inspection plan takes the guesswork out of OSHA inspections and gives designated company contacts the confidence they need to manage all aspects of the inspection from the outset and ensure the process goes as smoothly as possible.