OSHA Walkaround Rule Change

Will the OSHA workplace inspection process change?
It does appear that changes are on the horizon. On August 30, 2023, the Occupational Safety and Health Administration (OSHA) published in the Federal Register a notice of proposed rulemaking (NPRM) titled “Worker Walkaround Representative Designation Process”. This NPRM related to the Representatives of Employers and Employees regulation located at 29 CFR 1903.8(c). The final rule has been published in the Federal Register and becomes effective May 31, 2024. The rule aims to clarify that employees could authorize either an employee or a third-party representative to accompany OSHA compliance officers during inspections, provided the third party was deemed reasonably necessary for an effective inspection.

Background

In 2017, a court decision determined that OSHA’s practice of allowing third parties to serve as employee walkaround representatives was a valid interpretation of the Act but conflicted with the regulation as it stood at that time. Consequently, OSHA revised this regulation to restore its longstanding practice of permitting third parties to act as employee walkaround representatives. Per OSHA comments, this rule aims to enhance OSHA inspections and promote the safety and health of employees. The changes also expanded the scope of third-party representatives beyond industrial hygienists or safety engineers to include individuals with relevant skills, knowledge, or experience. Assistant Secretary for Occupational Safety and Health Doug Parker emphasized that enhancing worker participation in inspections was crucial for workplace safety. OSHA sought public comments on the proposed revisions and on the criteria for determining third-party participation in inspections. These revisions will not alter existing regulations granting OSHA compliance officers the authority to determine authorized representatives and to manage participation during inspections and it does not impact any compliance obligations for employers.

The proposed rule underwent an extended comment period, which ended in November 2023. Comments were received from both Republican and Democrat leaders of the House Education and the Workforce Committee. OSHA had been challenged in the past with having the authority to act as it related to employee representation during workplace inspections. In 2016, the National Federation of Independent Business (NFIB) filed a lawsuit challenging OSHA’s interpretation outlined in the Sallman letter, which allowed non-employee representatives during inspections. The district court ruled that OSHA’s interpretation was not consistent with existing regulations but did not conflict with the Act. Following this decision, OSHA rescinded the Sallman letter and revised the Field Operations Manual. The agency’s move with the latest NPRM was meant to clarify employee representation during inspections.

During the comment period, a group of 67 organizations, including the National Council for Occupational Safety and Health and Sur Legal Collaborative, expressed support for the proposal. They emphasized the importance of giving workers the right to select representatives to ensure their safety and health, particularly for immigrant and non-English-speaking workers who may have feared retaliation from abusive employers if they had participated in the walkaround process. This change may complicate future OSHA inspections by allowing third parties, potentially unrelated to the workplace, to participate in the inspection process. This introduces uncertainty regarding a Compliance Safety and Health Officer’s (CSHO) decision to permit one third party while excluding another. It also raises concerns about whether OSHA would permit third parties to participate in private interviews with employees and have access to management interviews. This increased access to information could lead to more complaints being raised in the workplace.

What actions does my organization need to take?

For now, employers should review their protocols for dealing with OSHA inspections and consider how to handle situations where a third party accompanies a CSHO. They may also want to develop a process to assess the legitimacy of a third party’s participation. Ultimately, each employer should always be prepared for an agency visit, whether it is OSHA or another regulatory agency. Having in place the proper protocols, procedures, and training for all employees, no matter their role or responsibilities, enhances the safety and security of the entire organization. Regardless of the changes, it is important that organizations always strive to do their best for the health and safety of employees, and an inspection should not be the driving force for continued improvement.

ALL4 can assist organizations with conducting internal audits, providing training, and by reviewing current policies and procedures. The health and safety professionals at ALL4 have extensive expertise spanning various workplace safety and health concerns. Serving a diverse array of industries, including specialty manufacturing, automotive, food and beverage, pharmaceuticals, energy, pulp and paper, and federal defense agencies, ALL4 tailors its services to meet the unique needs of each client. The ALL4 team is dedicated to developing site-specific strategies that prioritize accident and injury reduction and risk management. For more information or assistance with this and other regulatory compliance needs, contact Brian Godfrey, Managing Consultant, at bgodfrey@all4inc.com or Karen Thompson, Senior Technical Manager, at kthompson@all4inc.com.