When the Occupational Health and Safety Administration (OSHA) decides to conduct an inspection of a workplace, the “walkaround rule” regulation currently permits employees to designate a representative to accompany the inspector during the worksite inspection. However, the representative has to be an employee of the employer being inspected. Now, the walkaround rule is being expanded, and companies face the prospect of third parties being admitted to their property to participate in OSHA safety inspections.

Why the rule change is so significant for employers

Beginning May 31, 2024, two very significant changes to the walkaround rule go into effect. First, employees can still choose a co-worker to accompany the OSHA inspector, or they can select a third party to act as their representative during the inspection. Second, the employees’ representative will not be required to have any particular safety or industrial hygiene expertise. Under the new regulation, the third party can be anyone with “a variety of skills, knowledge, or experience that could” assist the inspection. The breadth of this language suggests that employees could ask union organizers, plaintiff’s attorneys, community activists, and others to act as their representative and take part in an inspection of the workplace. The appropriateness of the representative selected by employees is effectively left up to the OSHA inspector.

The significance of this change should not be ignored. First, it requires employers to admit third parties to their property, which was not previously required. This can endanger a company’s legitimate interests in maintaining confidentiality concerning its business and operations. Second, unions may use their participation in an OSHA inspection as a tool to help organize a non-union workplace. Third, an attorney, community activist, or union representative could use the inspection as a way to foment dubious safety complaints about the workplace.

This is not good news.

Don’t wait. Plan ahead.

Onsite investigations can happen quickly and with little or no notice. Employers should start planning now to determine how they will handle an onsite investigation with a potential third party walking around. In many cases, training and coaching prior to an investigation will be the best option. In other cases, particularly if the employee brings a plaintiff’s attorney, having legal counsel present may be the best response. Working with counsel prior to OSHA knocking on your door will put employers in the best position to effectively and timely respond.