Seyfarth Synopsis: On April 1, 2024, the Federal Register published OSHA’s final rule revising its regulations regarding whom employees can authorize to act as their representative(s) to accompany compliance officers during on-site OSHA inspections.
Under Section 8(e) of the Occupational Safety and Health Act, employees and employers alike have the right to have a representative accompany OSHA Compliance Officers (“CSHOs”) during physical inspections (“walkarounds”) of worksites as part of OSHA inspections. OSHA inspections can arise from serious accidents and injuries; employee or third-party complaints; or through targeting employers in “high-risk” industries, like warehousing. Depending on the type of inspection, walkarounds can be “wall to wall” (i.e., covering the entire worksite) or limited to the area where an employee was injured or the areas referenced in a complaint.
After a period of notice and comment rulemaking (which we previously blogged about), the Department of Labor has officially revised its regulations (29 CFR 1903.8) to clarify that employees have the right to designate a non-employee, third party to be their representative during the physical walkaround. OSHA views this update as “consistent with [its] historic practice,” asserting “the rule clarifies that a non-employee representative may be reasonably necessary based upon skills, knowledge or experience.” However, stakeholders and at least one court disagreed with OSHA’s interpretation, suggesting only an employer’s employee could serve as the walkaround representative. Now, OSHA has effectively indicated non-unionized employees can look outside the workplace – e.g., to unions – for support during an OSHA inspection.[1]
Technically, the revised regulations place limits on third-party employee representatives to ensure their presence actually aids the inspection. Specifically, a third-party must be “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience.” According to OSHA guidance issued alongside the revised rule, this can include, for example, technical knowledge or practical experience about the processes and hazards of the type present in the workplace that CSHOs may not have, or language and communication skills that facilitate the gathering of information from employees. Under the current administration, OSHA is likely to be extremely deferential to the requests of employees.
The rule provides the CSHO ultimate discretion to decide whether a third-party is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience.” Employers questioning the qualifications of the non-employee third party should raise the objection immediately with the CSHO and request clarification as to the necessity of that third party’s presence for the walkaround. If OSHA’s response is unsatisfactory, employers can consider denying access to that third-party representative.
Should an employer refuse “to permit a representative of employees to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace in accordance with § 1903.8, the Safety and Health Officer shall terminate the inspection” or narrow it to areas, topics, and materials to which the employer does not object. 29 CFR 1903.4(a). The CSHO must report the employer’s refusal – and the reason for it – to their Area Director, who will discuss it with OSHA’s attorneys at the Solicitor’s Office. Id. Employers may be able to raise legal defenses to third party visits on site, relating to the third party’s suitability, skills, experience, and method of selection at a non-represented workplace.
Even if there is no dispute as to the third-party representative’s presence, employers should take care to ensure the protection of confidential documents, trade secrets, and other confidential information. For example, during the walkaround inspection, it is typical for OSHA to take photographs of the workplace and for employers to take “side-by-side” photos of the same equipment and work areas. The revised regulations do not entitle non-employee third party representatives to possession of those photographs (or any other materials provided to OSHA during the inspection), or the ability to take photos without the employer’s permission.
[1] Employers in state plan states, like California, should continue to comply with those states’ applicable rules and regulations regarding union and third-party access to OSHA inspections. But, as required by section 18 of the OSH Act, States will need to ensure their standards and enforcement of those standards are at least as effective as any final rule published by OSHA following the notice and comment rulemaking process.
