Final Rule Issued To Clarify Rights to Employee Representation During OSHA Inspections

The U.S. Department of Labor has published a final rule clarifying the rights of employees to authorize a representative to accompany an Occupational Safety and Health Administration compliance officer during an inspection of their workplace.

 

The Occupational Safety and Health Act gives the employer and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection. The final rule clarifies that, consistent with the law, workers may authorize another employee to serve as their representative or select a non-employee. For a non-employee representative to accompany the compliance officer in a workplace, they must be reasonably necessary to conduct an effective and thorough inspection.

 

Consistent with OSHA's historic practice, the rule clarifies that a non-employee representative may be reasonably necessary based upon skills, knowledge or experience. This experience may include knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills to ensure an effective and thorough inspection. These revisions better align OSHA's regulation with the OSH Act and enable the agency to conduct more effective inspections. OSHA regulations require no specific qualifications for employer representatives or for employee representatives who are employed by the employer.

 

The rule is in part a response to a 2017 court decision ruling that the agency's existing regulation, 29 CFR 1903.8(c), only permitted employees of the employer to be authorized as representatives. However, the court acknowledged that the OSH Act does not limit who can serve as an employee representative and that OSHA's historic practice was a "persuasive and valid construction" of the OSH Act. Today's final rule is the culmination of notice and comment rulemaking that clarifies OSHA's inspection regulation and aligns with OSHA's longstanding construction of the act.

 

"Worker involvement in the inspection process is essential for thorough and effective inspections and making workplaces safer," said Assistant Secretary for Occupational Safety and Health Doug Parker. "The Occupational Safety and Health Act gives employers and employees equal opportunity for choosing representation during the OSHA inspection process, and this rule returns us to the fair, balanced approach Congress intended."

 

The rule is effective on May 31, 2024.

 

Scrap Management LLC, doing business as Rivers Edge Scrap Management of Kansas City, Kansas, will pay $144,500 in civil penalties to resolve alleged violations of the federal Clean Water Act.

 

According to the U.S. Environmental Protection Agency (EPA), the company failed to adequately control stormwater runoff from its scrap metal recycling and processing facility. EPA says that these failures could result in illegal discharges of pollution into the Kansas River.

 

“Uncontrolled runoff from scrap yards harms streams and rivers and limits the public’s use and enjoyment of those waters,” said David Cozad, director of EPA Region 7’s Enforcement and Compliance Assurance Division. “This settlement demonstrates EPA’s commitment to protecting vital watersheds in urban communities, especially in areas overburdened by pollution.

 

In the settlement documents, EPA alleges that Scrap Management failed to comply with certain terms of its Clean Water Act permit, including failure to update and implement practices to prevent runoff of pollution; failure to perform inspections; and failure to train employees on stormwater management practices.

 

In addition to paying the penalty, Scrap Management is correcting the alleged violations through implementation of an EPA compliance order.

 

EPA identified the community surrounding Scrap Management’s facility as a potentially sensitive location for multiple pollution sources. EPA is strengthening enforcement in such communities to address disproportionately high and adverse human health or environmental effects of industrial operations on vulnerable populations.

 

Under the Clean Water Act, industrial facilities that propose to discharge into protected water bodies are required to obtain permits and follow the requirements outlined in those permits to reduce pollution runoff. Failure to obtain a permit or follow the requirements of a permit may violate federal law.

 

Despite citations from the U.S. Department of Labor's Occupational Safety and Health Administration for similar hazards at its Shelby facility in 2022, ArcelorMittal Tubular Products USA LLC — a subsidiary of one of North America's largest steel suppliers — failed to protect a 60-year-old employee from severe injuries after they became caught in a pinch point created by a bundle of steel tubes and a rotating roller conveyor in December 2023.

 

Responding to an employer-reported injury, OSHA investigators determined the company did not guard the conveyor's pinch points adequately, which led an employee, working as a tube handler, to suffer lower arm and wrist injuries.

 

Following its inspection, OSHA issued four repeat violations for inadequate machine guarding, not using required lockout/tagout procedures and failing to train workers on procedures to reduce exposure to operating machine parts. ArcelorMittal Tubular Products USA faces $253,515 in proposed OSHA penalties.

 

“The inspection of ArcelorMittal Tubular Products was one of nearly 1,700 inspections related to machine hazards and potential amputation injuries in Ohio in the past five years,” said OSHA Area Director Todd Jensen in Toledo, Ohio. “This was a preventable injury had the company taken appropriate action to prevent workers from contacting moving machine parts, violations for which OSHA cited the company previously. Safety should be a core value of every company.”

 

Since 2014, the agency has cited the company's U.S. subsidiaries for 80 violations and investigated seven work-related deaths including in Illinois, Indiana, Pennsylvania and West Virginia. In 2020, ArcelorMittal announced the sale of its U.S. holdings to Cleveland-Cliffs, a leading supplier of automotive-grade steel. ArcelorMittal Tubular Products USA operates manufacturing facilities in Ohio in Marion and Shelby.

 

The company has 15 business days from receipt of the citations and penalties to comply, request an informal conference with OSHA's area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

 

 

The American Society of Safety Professionals and the American National Standards Institute have released the first national voluntary consensus standard for protecting construction and demolition workers from heat stress. According to ASSP’s press release, ANSI/ASSP A10.50, Heat Stress Management in Construction and Demolition Operations, offers guidance on how to protect workers from the health effects of high heat conditions, including through acclimating workers and training supervisors and employees. The standard also covers engineering and administrative controls to reduce risk and prevent heat-related illness, contains checklists and flowcharts to help employers develop effective heat stress management programs, and includes an emergency response plan in case a worker has a severe reaction to heat.

 

“While the scope of the standard focuses on construction and demolitions, the guidance can be adapted to protect workers performing other outdoor jobs such as tree trimming, farming, road maintenance and pipeline painting,” ASSP states.

 

The effects of heat stress can range from mild symptoms, including heat stress and heat cramps, to potentially fatal conditions, such as heat exhaustion and heat stroke. The U.S. Bureau of Labor Statistics recorded 436 work-related deaths caused by exposure to environmental heat between 2011 and 2021. As of March 2024, no national regulatory standard exists to protect U.S. workers from heat illness and injury, although OSHA began its rulemaking process for a national heat standard in October 2021. By November 2023, the agency had concluded a small business advocacy review panel to discuss the impacts of the potential standard.

 

Voluntary consensus standards such as ASSP/ANSI A10.50 are intended to fill the gaps where federal regulations are inadequate, according to ASSP’s press release. A subcommittee that included representatives from businesses, trade unions, consulting firms, universities, and government agencies developed the new voluntary standard over the course of three years.

 

“This new industry consensus standard is an important development because there is no federal regulation focused on heat stress,” said Jim Thornton, CSP, CIH, FASSP, FAIHA, the president of ASSP. “Employers need expert guidance on how to manage heat-related risks. They must have the tools and resources to identify and help prevent work hazards before an incident occurs.”

 

More information can be found in ASSP’s press release.