The Occupational Safety and Health Administration (OSHA) recently published its final Worker Walkaround Representative Designation Process rule (Walkaround Rule), which takes effect May 31, 2024. The new Walkaround Rule expands employees’ rights to decide who represents them during OSHA inspections.
Out With the Old: The Occupational Safety and Health Act of 1970 requires that employers and employee representatives be allowed to accompany the inspector during physical worksite inspections. This is commonly referred to as the “walkaround rule.” Previously, employee representatives were limited to current employees of the employer with a limited exception for third-party representatives. The third-party representative had to be authorized by the inspector as “reasonably necessary” for a thorough and efficient inspection. While the original rule technically meant any party, including union organizations, the rule was narrowly interpreted to mean only certain third-party representatives, such as safety engineers and industrial hygienists.
In With the New: The new rule states authorized representatives “may be an employee of the employer or a third party.” Gone are the days where third-party representatives were limited to experts such as safety engineers or industrial hygienists. The rule’s revised preamble explicitly allows employees to invite outside representatives to join OSHA inspectors during a walkaround. Yes, this means “outside representatives” such as union organizations and other worker advocacy groups are allowed to tagalong during inspections. Inspectors still have the authority to determine whether the third-party is “reasonably necessary.” However, OSHA has, to date, declined to provide guidance on how and when inspectors should grant requests for outside representatives to participate in walkarounds. As it stands, “third-party” includes anyone who has “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.” Inspectors may well determine that unions are reasonable third-party representatives in any given situation, due to their knowledge and experience with hazards or conditions in workplaces similar to the workplace being investigated.
What Does This Mean For Employers?
You should take this opportunity to review and, if necessary, update your company’s readiness for an on-site OSHA inspection. Among other things, you should:
- Create an “OSHA Response Team” and designate a point person on the Response Team who is trained and equipped to deal with an OSHA inspector and any employee-designated walkaround representative; and
- Have updated and readily available the key documents an OSHA inspector will likely ask for, including the company’s recent OSHA 300-logs, hazard communication policy, lock out/tag out policy, personal protective equipment policy, and emergency evacuation policy.
OSHA’s new Walkaround Rule creates an opportunity for labor organizations to gain access to non-unionized companies by getting designated as the third-party representative for a walkaround. In light of the recent increase in union elections that we’ve previously written about, a savvy employer will, among other things, conduct a vulnerability audit of its workplace, in conjunction with experienced labor counsel, to assess its vulnerability to a union organizing effort and plan accordingly.
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