On April 1, the Occupational Safety and Health Administration (OSHA) published its Worker Walkaround Representative Designation Process Rule, which is set to take effect 30 days after its publication in the Federal Register on May 31, 2024. The new rule broadens workers’ rights to choose who represents them during safety inspections, overwriting an old standard that required the representative to be a fellow employee and opening the door for outside representatives such as those from unions.
The OSHA Act and its implementing regulation, 29 CFR § 1903.8, allows a representative of both an employer and employee to accompany an OSHA inspector during a physical “onsite” inspection of an employer’s worksite. The current version of Section 1903.8(c) limited employee representatives to current employees, stating that the “representative(s) authorized by employees shall be an employee(s) of the employer.” Additionally, section 1903.8(c) provides that the OSHA compliance safety and health officer (CSHO) can allow a third-party representative “such as an industrial hygienist or a safety engineer” if they determine good cause is shown the third party is reasonably necessary.
Prior to 2017, OSHA had permitted employee representatives to be third parties under Section 1903.8(c). However, in 2017, a Texas district court ruled that Section 1903.8(c) only permitted employees of the employer to be authorized as representatives. See Nat’l Fed’n of Indep. Bus. v. Dougherty, No. 3:16-CV-2568-D, 2017 WL 1194666, at *11 (N.D. Tex. Feb. 3, 2017).
Changes to Existing OSHA Regulation
Thus, partially in response to the Texas ruling, the new rule makes two big changes to the existing OSHA regulation. First, the new rule clarifies that employee representatives can indeed be a third party and not just an employee of the employer. Second, the rule broadly states that non-employees may join inspections “if, in the judgment of the [CSHO], good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).” 29 C.F.R. § 1903.8(c) (emphasis added). The regulations require no specific qualifications for employer representatives or for employee representatives who are employed by the employer. In fact, the preamble to the Final Rule explicitly states that OSHA will allow for “a wide variety of third parties,” including “those from unions or worker advocacy groups.”
OSHA’s new Walkaround Rule opens the door for unions and other third parties to access private employer worksites as employee representatives during an OSHA inspection. This includes allowing union representatives and labor activists access to nonunionized worksites, access they would otherwise be denied under federal labor law. Additionally, the final rule does not provide employers with a mechanism to object to the selection of a non-employee third-party representative. Instead, if an employer refuses to permit a non-employee third-party representative to join the inspection after a CSHO has determined that their participation is appropriate, the CSHO can follow the OSHA’s procedures for obtaining a warrant to conduct the physical inspection.
In anticipation of the rule’s May 31 effective date, employers should ensure they have updated their procedures to instruct management on how to receive OSHA inspectors who wish to gain access to the job site and prepare for the new possibility that OSHA may try to bring a union organizer along, even if the workers are not unionized.
