The Occupational Safety and Health Administration (OSHA) recently introduced a new walkaround rule designed to clarify that, like employers, employees have the right to designate a non-employee third party to be their representative during a walkaround inspection with OSHA.
In issuing the rule, the Department of Labor cleared up prior inconsistent interpretations regarding the ability to designate a non-employee representative to aid with an inspection. According to the Department of Labor, the revisions in the Final Rule “better align OSHA’s regulation with the [OSH] Act and will enable the agency to conduct more thorough inspections.”
What is OSHA’s New Worker Walkaround Rule?
OSHA's new walkaround rule clarifies the rights employees have during a workplace safety inspection. The key change is that employees can now designate a "non-employee representative" to accompany the OSHA inspector during the walkaround portion of the inspection. Previously, only employees or company representatives were permitted.
There are some qualifications, however. The non-employee representative must be deemed "reasonably necessary" to conduct a thorough inspection. This means they should have relevant skills or knowledge, such as (but not limited to):
- “Relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces; or
- Language or communication skills.”
OSHA maintains that this updated rule better aligns with the Occupational Safety and Health Act and allows for more comprehensive inspections.
How Does the New Walkaround Rule Impact Employers?
OSHA’s revised walkaround rule brings both advantages and disadvantages for employers.
Consider these pros and cons for employers:
- Pros: Third-party representatives can possess valuable technical knowledge and expertise in specific safety areas, contributing to a more thorough and informed inspection process. They may also facilitate improved communication between OSHA inspectors and employees who have limited proficiency in English.
- Cons: Third-party representatives are often unfamiliar with the specific worksite being inspected, which could result in a lack of context or understanding of unique workplace conditions. They may also harbor ulterior motives that complicate the inspection process, are adverse to the employer’s interests, and may pose risks related to the disclosure of confidential business information and trade secrets.
Why Is OSHA's New Walkaround Rule Controversial?
Industry groups have objected to the revised walkaround rule primarily on these grounds:
Vague Definitions and Undefined Processes
The new rule allows employees to authorize a non-employee representative 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…”
Employers and industry groups have objected to the lack of definition of “good cause” and assert that this vague term will lead to compliance officers making inconsistent determinations.
Employers also cite a lack of defined processes and have raised these questions:
- What are the criteria for selecting a “reasonably necessary” third-party employee representative?
- Are employers allowed to challenge or appeal the employee's authorized representative?
As written, the final rule offers no clear answer to these questions.
Safety Concerns
Employers are concerned over the lack of defined qualifications for a third-party employee representative and argue that someone inexperienced could slow down the inspection or even pose a safety risk.
- Food industry groups raised concerns about food safety and sanitation hazards.
- Chemical industry groups raised concerns about having third parties – who have not undergone terrorism background checks or who lack industry credentials – onsite at hazardous chemical facilities.
- Healthcare employers cited patient safety and privacy issues; one hospital shared an example of an unqualified third-party who provided inaccurate health and safety information to a compliance officer that could have harmed patients and team members.
- The construction industry raised a concern over multi-employer worksites. OSHA’s new walkaround rule allows persons unrelated to the controlling, exposing, creating or correcting employers to participate in the inspection, exposing the controlling employer to potential liability and penalties.
Unionization and Hidden Agendas
Employers argue that third parties may have ulterior motives and could engage in conduct unrelated to the inspection, such as an effort to unionize a workplace or conduct pre-litigation discovery in personal injury or wrongful death matters.
Other employers cited concerns over disgruntled former employees or individuals with ideological differences engaging in workplace violence or causing conflict.
Confidentiality Concerns
Employers also argued that the need to protect trade secrets and other confidential information outweighs the need for third parties. One employer voiced concerns that a third-party representative, such as a competitor or someone who is hostile to the employer being inspected, could obtain and disclose trade secrets or other confidential business information.
The manufacturing industry, in particular, argued that “the manufacturing process itself constitutes proprietary trade secrets that would be impossible to protect from disclosure.”
OSHA Walkaround Rule FAQ
Is the New OSHA Walkaround Rule Effective Now?
The rule became effective May 31, 2024. A pending federal lawsuit may impact OSHA's ability to enforce the walkaround rule. For now, however, the rule remains in effect and enforceable.
Can Third-Party Employee Representatives Participate in All Aspects of the Inspection?
No, under OSHA's new walkaround rule, third-party employee representatives cannot participate in all aspects of the inspection. Their participation is generally limited to the walkaround portion of the inspection and attending the opening and closing conferences.
Other important considerations:
- Third-party representatives can be present during individual employee interviews with the OSHA inspector at the employee's request.
- OSHA inspectors have the authority to limit a third-party representative's participation if their presence disrupts the inspection or if they don't have the necessary qualifications.
Will OSHA’s New Walkaround Rule Be Challenged in Court?
Various trade and industry groups, including Associated General Contractors, have already filed a lawsuit in a Texas federal court challenging the new rule. These groups are asking the court to declare the rule unlawful, vacate it, and stop OSHA from enforcing it, arguing that the changes overturn 50 years of precedent.
In late June, plaintiffs in the case filed a motion for summary judgment which, if granted, would effectively end the case and prevent OSHA from enforcing the new rule. If the judge finds there are factual issues that need to be decided at trial, they will deny the motion and the case moves to trial.
The court has not yet ruled on the motion.
What Are the Criteria for Selecting a Third-Party Representative?
The criteria for selecting a third-party representative are not explicitly defined in the rule. It focuses on the "reasonableness" of the representative's qualifications including, but not limited to, “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.” However, specific technical expertise is not required.
What Is the Process for Employees to Select a Third-Party Representative?
There is no process defined for selecting a third-party representative. Employees can designate representatives through various methods, such as authorizing them to file complaints, designating them during safety committee meetings, or informing OSHA officers during inspections or employee interviews.
Can Employers Object to the Employee’s Selection of a Third-Party Representative?
Employers can raise concerns about the selected representative with the OSHA compliance officer, who has the authority to resolve disputes about the appropriateness of the representative.
However, the rule does not provide a formal process for employers to challenge the selection. This is one of the many concerns voiced by employers, especially for situations in which the selected representative is perceived to have prejudicial motives or insufficient expertise.
How Will OSHA Compliance Officers Determine if there Is “Good Cause” that a Third-Party Representative is “Reasonably Necessary” to Conduct the Workplace Inspection?
Compliance officers may use their discretion to assess whether there is “good cause” and whether the third-party representative's presence is “reasonably necessary” based on the representative's qualifications and the specific needs of the inspection.
Can Employers Refuse Requests for Third Parties to Accompany OSHA?
Employers cannot outright refuse requests for third parties to accompany OSHA inspectors. However, employers can express concerns and discuss the qualifications and relevance of the third-party representative with the OSHA compliance officer.
Employers can also refuse to allow the compliance officer to conduct the inspection. At this point, OSHA will obtain a warrant and the employer can move to quash the warrant. There will be a hearing on the motion to quash, and the employer will have the opportunity to present their objections to the court.
Speak to your OSHA defense attorney for guidance before denying entry to a compliance officer accompanied by a third-party representative.
Have More Questions? Call Hendershot Cowart P.C. Today
Hendershot Cowart P.C. works with employers across Texas and the Gulf Coast region on a range of OSHA matters. To speak with a lawyer about our services and your situation, call (713) 909-7323 or contact us online.
