On March 29, 2024, the Department of Labor (DOL) published its final rule allowing employees to authorize a representative to accompany an OSHA compliance officer during inspections of their workplace. The rule will be effective May 31, 2024, and is published in the CFR. 

The Occupational Safety and Health Act (OSH Act) has language that gives both the employer and employees the right to authorize a representative to accompany OSHA officials during workplace inspections. In order to comply with the OSH Act, the new rule is intended to clarify when and how workers may authorize another employee or select a non-employee to serve as their representative. According to OSHA, the revisions better align OSHA’s regulation with the OSH Act and will enable the agency to conduct more thorough inspections. In a press release announcing the new regulations, the Assistant Secretary for Occupational Safety and Health, Doug Parker, was quoted as stating:

“Worker involvement in the inspection process is essential for thorough and effective inspections and making workplaces safer, and, The Occupational Safety and Health Act gives employers and employees equal opportunity for choosing representation during the OSHA inspection process, and this rule returns us to the fair, balanced approach Congress intended.”

The new rule clarifies when a non-employee can serve as the employee’s representative, including:

• A third-party representative authorized by employees may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience. This can include, for example, technical knowledge or practical experience about the processes and hazards of the type present in the workplace, or language and communication skills that facilitate the gathering of information from employees; however,
• Employees' options for third-party representation during OSHA inspections are not limited to persons with formal credentials such as an industrial hygienist or safety engineer;

The new rule does not impose any specific requirements for employer representatives who are employees of the employer.

In materials released with the publication of the Final Rule, OSHA did provide a number of question and answers scenarios that will be useful guides for employers and employees as walk around rules are implemented, including when and how employee(s) may elect a third-party representative, whether there is a threshold number of employees who must request a third-party representative, and how the employer can object to that election. The Q&A can be reviewed on the OSHA website.

When the new rule was first proposed, it generated substantial opposition. Interestingly, while the issue of representatives of employees being involved in OSHA inspections remains controversial, in the mining industry, the 1977 law establishing the Mine Safety and Health Administration (MSHA) has always allowed miner’s to select representatives to accompany inspectors, including, at times, representatives that are not actively employed at the mine site where they serve as a miner’s representative.

Even now that the rule has been finalized, we anticipate that the rule is likely to face Court challenges as many employer groups and trade associations opposed its proposed issuance last year. If challenged, a court may opt to stay implementation of this new rule. Employers facing OSHA investigations will need to be aware of and comply with these new regulations as of May 31, 2024, if they are not subsequently stayed by court ruling.

For further information or questions about OSHA inspections and walk around rights, contact Mark E Heath, Co-Chair of the OSHA and MSHA practice group.

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