The Department of Labor (DOL) recently proposed a revision to the way OSHA inspections are conducted. Their proposal would allow employees to authorize a representative to accompany OSHA inspectors during a workplace inspection.
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Why are OSHA inspection revisions being proposed?
The modifications to OSHA inspections are intended to improve worker representation during the compliance inspection process. The DOL states that employees will be allowed to authorize either another employee or a third-party observer to accompany OSHA inspectors during their work.
The idea is to give employees more of a voice during OSHA compliance processes, since the DOL has found that employees are often a valuable asset to accurate workplace safety auditing. Consulting a third-party individual during an OSHA inspection is sometimes deemed necessary because these individuals could have relevant skills, inside knowledge, or prior experience that OSHA auditors would need for their inspections. Relevant information includes knowledge of working conditions, language skills, or information about workplace hazards.
While the proposal mentions industrial hygienists and safety engineers as two examples of potential third-party representatives, employers are not limited by this. Any OSHA compliance representative is permitted as long as their presence adds to the inspection and does not compromise trade secrets.
What aspects of OSHA compliance inspections will change?
The introduction of potential third-party representatives to the compliance inspection process is not a very large change. That’s because OSHA compliance officers still have the authority to determine if said representatives are in fact authorized by employees and to veto their participation in audits.
Your assigned compliance officer may do this if the representative displays conduct that prevents a fair inspection, or if their participation would mean leaking trade secrets.
Additionally, this is still a proposal, meaning the criteria for including a third-party representative and the degree to which OSHA will defer to employee representatives is still being decided. In fact, OSHA is asking for business owners to provide their own feedback on the matter, which you can do via Regulations.gov. The deadline for comments is October 30th, 2023, and the reference number of the proposal is OSHA-2023-0008.
How should you prepare for an OSHA inspection?
The DOL proposal allows you to assign employees or relevant third parties to be part of compliance inspections, but they still need to be ready for the role. Your employees are likely to be familiar with your organization, so it’s particularly important to prepare any third-party OSHA consultants.
Most OSHA audits take place without warning, which is why all the preparation should be thought of not as preparation for a workplace inspection, but as a collection of general business habits.
Perform regular hazard assessments
Since you don’t know when an OSHA inspection will come, you should regularly check for and if possible remove hazards from your workplace. OSHA also requires that you prepare and maintain a job hazard analysis – which is a list of common hazards on your job site as well as a plan for dealing with said hazards.
Provide safety training
Make sure to provide safety training such that your employees can show inspectors their certifications. Regular and refreshed training is important since safety standards change, so the more current the knowledge, the better.
Knowledge of employee safety training is useful for a third-party representative as well. If your business is too large for OSHA to speak with each employee individually, you’ll want to collect everyone’s proof of training in one place. This is much easier when you conduct training online.
Maintain your records
Make sure you’ve documented everything relevant to an OSHA audit and continue documenting it daily. Having safety documentation ready when asked is the best way to prevent any citations.
Information to document includes your safety policies, your employee training results, prior employee complaints, and worker’s compensation files.
Perform internal audits
Simulating the conditions and standards of an OSHA audit without the high stakes associated is an excellent way to identify issues that need resolving before official inspectors do. Since the dates of OSHA compliance inspections are random, internal audits should also be a regular practice.
This is where a third-party representative can be useful as an OSHA consultant. Internal audits can carry a bias, and it’s possible you don’t have all the necessary information to conduct one. A third-party auditor will know exactly what OSHA looks for during their visits.
Make sure employees know their rights
Your employees often play a pivotal role during OSHA inspections. As such it’s important that they are aware of their rights. While they may choose to communicate with inspectors (answering questions and such), they are not obligated to do so. Your employees are also allowed to mandate conversations not be recorded, as well as decline to sign witness statements.
Employees have the right to request a witness statement in their native language as well. They should always keep copies of anything they sign.