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New third-party OSHA violation inspections a bad public policy?

A letter of interpretation recently issued by OSHA has caused some concern for companies scheduled for an inspection by the federal agency. Third parties, such as union reps or other individuals who are not employees of the company being inspected, may now find it easier to participate in the walk-around. It can be in the best interests of employers in California and elsewhere to be prepared when an OSHA violation inspection is conducted with a third party who is not an authorized member of the federal agency.

The federal agency's regulations provide for company workers to select an employee to be part of an OSHA inspection and to participate in the walk-around. The regulations also provide for a third party to join the walk-around when it can be demonstrated that they are 'reasonably necessary' in order for the agency to accomplish a thorough and effective physical inspection. The recent OSHA letter of interpretation broadens that language to include a third-party who will make a positive contribution to the inspection. More than 50 organizations have so far joined together in communicating to OSHA their questioning of the new interpretation and citing it as an example of bad public policy. Employers can take a few precautions, however, when unnecessary and potentially intrusive third-parties attempt to inspect their facilities.

The first thing that should be done is to check the third party's credentials and determine their affiliations before allowing them to participate in the inspection. If the third party is to be allowed to participate in the walk-around, they can be made to sign confidentiality agreements and liability waivers (in the same manner as OSHA officials can be made to sign). The third party can also be limited to participating in the walk-around only and prohibited from interviewing employees or becoming involved in any conferences that might take place before or after the inspection.

Taking photographs and/or recording videos should also be prohibited during the walk-around. Practical measures such as these should be considered only as common-sense and general guidelines regarding third party involvement in an OHSA violation inspection. In order to be best prepared for any kind of workplace safety inspection, employers in California and elsewhere should consider obtaining the guidance and assistance of those who are most familiar with both federal and state worker safety laws and regulations.

Source: nasf.org, "Is Your Facility Ready? Preparing for a New Type of OSHA Inspection," July 18, 2013

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