In a significant revision to long-standing Department of Labor regulations, OSHA announced a final rule on March 29, 2024, establishing the rights of employees to choose a representative, whether an employee or a non-employee, to accompany OSHA officials on worksite inspections.

Previously, the applicable regulation only permitted employee representatives who were also employees of the company to participate in “walkaround” OSHA inspections, unless OSHA could show that a third party was “reasonably necessary” to assist, such as an industrial hygienist or safety engineer. Under the new rule, the “reasonably necessary” definition has been expanded to include individuals based on “knowledge, skills and experience with hazardous conditions” or “language or communication skills.” In addition, the employee representative will have the right to a more comprehensive “participation” in the inspection, rather than simply being permitted to “accompany” the inspector.

The increased universe of employee representatives may now include union business agents (even in non-union workplaces), community activists, other entities in multi-employer worksites, consultants and attorneys. We anticipate legal challenges to the new rule, scheduled to be effective on May 31, 2024, in light of the substantial privacy, confidentiality and liability concerns associated with the mandatory presence of non-employee, non-governmental third parties at a company worksite.

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