“Representation not only reflects, but actually changes reality.”  — Angela Chen

OSHA has several regulations that allow or require employee participation in activities regarding workplace safety. For instance, there is employee participation during OSHA inspections and in the development of the elements of the Process Safety Management (PSM) standard. And those regulations don’t stop at allowing direct employee participation. Employees can also have representatives.

The Requirements of PSM

The PSM standard mentions employee representatives three times. The first time is in (c) Employee participation, regarding developing PHAs and the other elements of PSM. The second time is also in (c) Employee participation and pertains to access to PHAs and all other information regarding process safety. The third time is in (p) Trade secrets, where it states that employee representatives get access to PHAs and all other information regarding process safety even if the employer deems that it contains trade secrets.

Employee Participation

The difficulty that most employers face during PHAs and the development of the other elements of PSM is not in allowing employees to participate, but in finding employees who want to participate. But paragraph (c)(2) clearly states that “Employers shall consult with employees and their representatives…” For employers, it is not optional. In most cases, employers choose employees to participate who will, based on experience, knowledge, and attitude, have the most to contribute. However, the standard also grants employees the right to choose a representative. That can be a representative employee, or in a union shop it might be the union steward. Or it might be a third-party representative from outside the organization.

When most of us think about a “representative,” we think about a lawyer. How a lawyer can contribute to a PHA is a bit of a mystery unless they are also trained and experienced as a safety engineer or industrial hygienist. Regardless, that seems to be what the regulation suggests, and it is the very nature of “employee representatives” that they are chosen by the employees. Employers do not get to choose representatives for their employees.

Are there any restrictions on who employees can choose to represent them in the development of PHAs and the other elements of PSM?

A Proposed Rulemaking

During an OSHA inspection, employees have a right to be present. Not just to be interviewed in private (without a company attorney present), but during the opening and closing conference. OSHA regulations also allow for employee representatives. The OSHA regulations suggest that employees may want to be represented by safety engineers or industrial hygienists. But the regulations also grant inspectors the authority to decide whether an individual is actually authorized by employees and to exclude someone from joining the inspection if they are disruptive or interfere with keeping the inspection fair and orderly. Inspectors can also prevent someone from acting as an employee representative if that is necessary to protect employer trade secrets.

OSHA has proposed a new rule to clarify who may be an employee representative during an inspection. The pool is not limited to safety engineers or industrial hygienists. On the other hand, if the OSHA inspection is the result of a third-party complaint, the new rule makes it clear that the party making the complaint is not automatically entitled to participate in the inspection. It may be that they do, but not simply because they filed the complaint.

A Key Difference

OSHA envisioned employee representatives as being safety engineers or industrial hygienists, or for that matter, translators. People who could contribute to the development of the PSM elements. They did not imagine them to be advocates in an adversarial role.

While the OSHA rules regulating inspections are instructive when it comes to PSM compliance, there is a key difference. During OSHA inspections, OSHA inspectors decide whether the person designated or claiming to be the employee’s representative is actually going to contribute to the inspection. There is no similar role granted by the PSM standard.

Don’t Spoil It

Third-party employee representatives at PHAs are rare. Unheard of. But the regulation allows for them, and OSHA has little patience with employers who violate employee rights granted by their regulations. So, be aware of the possibility and consider how you intend to handle it. The best, most effective PHAs are collegial gatherings with everyone working toward the common goal of discovering and identifying the hazards of the process and ensuring that there are adequate safeguards. Don’t let an adversarial attitude, by the third-party employee representative or by the employer’s representatives, spoil that.



  • Mike Schmidt

    With a career in the CPI that began in 1977 with Union Carbide, Mike was profoundly impacted by the 1984 tragedy in Bhopal and has been working on process safety ever since.