A newly-proposed rule has the potential to weaponize OSHA safety inspections — without protecting worker safety — and is certain to erode trust.
Who has access to a business or other organization’s premises can be a highly sensitive matter, and public policy must make a priority of fostering trust in government agents with that authority. Unfortunately, that trust has been eroding, as seen, for example, when the Occupational Safety and Health Administration (OSHA) attempted to act as a government health enforcer requiring employers to force employees to be vaccinated against COVID. The U.S. Supreme Court squashed that unconstitutional mandate, but it was only one especially stark example of a discomfiting tendency.
Now, OSHA may be back to make life difficult for employers again. A recently proposed rule from the U.S. Department of Labor (DOL) deserves greater scrutiny along these lines. The rule proposes to modify the regulation about who can accompany OSHA compliance officers as they conduct workplace inspections. Under current rules, the employer and employees of a workplace may each authorize a person for this task, and in the latter case, it must be a fellow employee. If the OSHA compliance officer determines “good cause” for a third party to be present to conduct “an effective and thorough physical inspection,” one may join. The regulation gives the specific and technically focused examples of “an industrial hygienist or a safety engineer.”
Under the proposed change, the employees — as determined by the OSHA officer — will be able to appoint a non-employee, without the approval of the employer. The specific examples of third parties currently named in the regulation would also be replaced with an extremely broad rationale. This means that, with some pretense related to employees, OSHA could bring a representative from the Freedom from Religion Foundation to serve on the OSHA inspection team for your church. If you own a business, a competitor could accompany the inspection team, putting the burden on you to deny them access to areas containing valuable trade secrets. If you own a farm, an organizer from an anti-livestock or anti-ag group could be appointed to the safety inspection team.
Implementing very subjective standards for third-party inspectors, in place of an implied requirement for technical expertise, opens the door wide for abuse of access. The proposal does nothing to promote workplace safety, inserts OSHA into labor-management disputes, and contradicts existing OSHA regulations and the National Labor Relations Act. In addition, the proposed rule fails to provide any safety expertise criteria for the selection of third-party representatives and raises serious concerns regarding legal responsibility for injuries to third-party representatives. Finally, these additional individuals participating in the inspection could distract OSHA inspectors from their primary goal of workplace safety.
This proposed rule has the potential to weaponize OSHA safety inspections — without protecting worker safety — and is certain to erode trust. After all, OSHA is empowered to fine businesses thousands of dollars for safety violations and even petition a court to shut employers down.
This is a prime example of the way in which regulations can have a huge impact (financial and otherwise) on our lives. It also illustrates how taxpayers must always be vigilant, as special interests know exactly what rules they need to change to accomplish their objectives and can do so subtly. DOL’s rule has not been finalized, yet, but the public comment period has closed, and now businesses anxiously await the final decision. If the rule is finalized as proposed, litigation will surely follow. As that process follows its course, Iowa businesses must be alert for changes in their safety inspections and speak up when things seem off.