After May 31, 2024, employees can designate a non-employee to accompany OSHA compliance officers during worksite inspections.

TAKEAWAYS

• OSHA inspectors will determine whether non-employee representatives are “reasonably necessary” to the inspection because of their “relevant knowledge, skills, or experience.”
• Employers have the right to limit entry of non-employee representatives into workplace areas that contain trade secrets.
• Non-employee representatives must comply with employers’ established lawful rules and policies.

Both employers and employees have the right to have a representative accompany OSHA compliance officers (CSHOs) during physical inspections of worksites for the purpose of aiding such inspections. (See 29 CFR 1903.8.) The new Worker Walkaround Designation Process (Walkaround Rule) clarifies that employees, like employers, have the right to designate a non-employee third party to be their representative. The Walkaround Rule places certain conditions on non-employee third-party representatives to ensure their presence aids the inspection.

On May 31, 2024, the new Walkaround Rule will go into effect and states:

The representative(s) authorized by employees may be an employee of the employer or a third party. When the representative(s) authorized by employees is not an employee of the employer, they may accompany the Compliance Safety and Health Officer during the inspection if, in the judgment of the Compliance Safety and Health Officer, 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).

Potential Employer Concerns
Having a non-employee third party represent employees during inspections presents a number of potential concerns related to trade secret protection, business disruption, inspection interference and the representative’s qualifications.

• Trade Secrets. OSHA’s FAQs state the Walkaround Rule does not “affect the employer’s right to limit entry of employee authorized representatives into areas of the workplace that contain trade secrets,” citing 29 CFR 1903.9(d). That section states:

Upon the request of an employer, any authorized representative of employees under §1903.8 in an area containing trade secrets shall be an employee in that area or an employee authorized by the employer to enter that area. Where there is no such representative or employee, the Compliance Safety and Health Officer shall consult with a reasonable number of employees who work in that area concerning matters of safety and health.

Accordingly, an employer has the right to deny a non-employee third-party representative access to an area containing trade secrets. Because there will be no representative authorized to enter that area, the CSHO shall consult with a reasonable number of employees who work in that area.

In practice, the employer should identify all areas containing trade secrets and notify the CSHO during the opening conference that non-employee third-party representatives are not allowed access to those areas. If an employer identifies something as a trade secret, OSHA will treat it as a trade secret if there is “no clear reason to question such identification.” (See 29 CFR 1903.9(c): “If the Compliance Safety and Health Officer has no clear reason to question such identification, information obtained in such areas, including all negatives and prints of photographs, and environmental samples, shall be labeled “confidential—trade secret” and shall not be disclosed …”.) The employer should then be prepared to offer a reasonable number of employees who work in those areas for the CSHO to consult with.

• Business Disruption. OSHA’s FAQs state: “As always, the conduct of OSHA’s inspections must preclude unreasonable disruption of the operations of employer’s establishment,” citing 29 CFR 1903.7(d) (“The conduct of inspections shall be such as to preclude unreasonable disruption of the operations of the employer’s establishment.”)

The FAQs further state:

OSHA anticipates that third-party representatives will generally have to comply with employers’ established lawful rules and policies, as long as those rules and policies apply equally to all visitors and are not implemented or enforced in a way so as to interfere with an employee representative’s right to accompany the CSHO during OSHA’s physical inspection of the workplace. For example, third-party employee representatives may be required to be fit tested and to wear a respirator. Some workplaces, such as chemical plants and Department of Homeland Security facilities, may have additional security or entry requirements that also apply to visitors to the worksite.

However, if an employer applies their rules and/or policies in a discriminatory manner (e.g., only requiring third-party employee representatives to have background checks but not for other visitors to the property), such conduct could be considered obstructive and constitute interference with the inspection. If compliance with a facially lawful rule or policy places an unreasonable barrier to CSHO or third-party access to the worksite, it could constitute employer interference with an inspection. Such determination would be made on a case-by-case basis, taking into account the business purpose for the policy. Employers may need to consult other laws, regulations, and any applicable collective bargaining agreements to determine the appropriateness of rules and policies.

The employer should provide the non-employee third-party representative with all rules and policies (e.g., regarding personal protective equipment, cameras and phones, emergency evacuation) applicable to visitors, and have the representative acknowledge receipt of those rules and policies. Importantly, the employer must not treat the representative differently from other visitors.

In addition, OSHA’s FAQs state the employer “may require a third-party representative to sign a reasonable confidentiality agreement, limited to the use of the confidential information learned in the inspection, on the same terms as it requires of other visitors.” However, the confidentiality agreement “may not restrict the representative’s ability to discuss information with OSHA or employees affected by the inspection, or restrict the representative’s participation in any future enforcement proceedings.”

• Inspection Interference. OSHA’s FAQs state: “An employee representative whose conduct interferes with a fair and orderly inspection, which includes any activity not directly related to conducting an effective and thorough physical inspection of the workplace, may be denied from accompanying in the inspection.” Interfering or disruptive conduct is conduct that delays or impedes the inspection. In addition, any activity not directly related to conducting an effective and thorough physical inspection of the workplace is also deemed to interfere with a fair and orderly inspection.

During the opening conference, the CSHO sets the ground rules for the inspection, makes clear that employee and employer representatives may not disrupt or interfere with a fair and orderly inspection, and advises the employee representative that matters unrelated to the inspection shall not be discussed with employees. If the employer observes any of the above behavior, it should report to the CSHO as soon as possible and discuss whether the non-employee third-party representative’s right of accompaniment should be limited or denied.

• Representative’s Qualifications. The Walkaround Rule allows non-employee third-party representatives to accompany the CSHO if “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).” If the employer has concerns about the non-employee third-party representative’s knowledge, skills or experience, or whether the representative would aid the inspection, it may raise those concerns to the CSHO. The CSHO has the ultimate authority to determine whether and which representatives may accompany the CSHO on the walkaround inspection.

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