The U.S. Department of Labor’s announcement of the final rule concerning Occupational Safety and Health Administration (“OSHA”) inspections has employers ringing alarm bells. Set to take effect on May 31, 2024, the rule amends 29 C.F.R. § 1903.8(c) and makes significant changes to who is eligible to accompany OSHA Compliance Safety and Health Officers (“CSHO”) during workplace inspections, which are commonly referred to as “walkarounds.”
What Has Changed?
Before the amendment, OSHA’s rule restricted an employee’s authorized third-party representative during inspections to an employee of the employer or an individual with formal credentials approved by the CSHO.
Under the amended rule, employees may choose either a fellow employee or a non-employee third party to serve as their representative during an OSHA inspection. More critically, the amendment no longer requires non-employee third-party representatives to possess formal credentials or specific professional expertise. Instead, if a CSHO believes that a non-employee third party’s knowledge, skills or experience with hazards, workplace conditions or language will aid in conducting an effective and thorough inspection, the CSHO may permit the individual to join.
Other than determining that the third-party representative is “reasonably necessary,” the CSHO retains complete discretion over who may represent the employee. This means an employee could authorize a safety consultant, a union representative, member of the press or any other person as their third-party representative during an OSHA walkaround.
Key Areas of Concern
- Criteria for Third-Party Involvement: The discretionary power given to CSHOs lacks clear, standardized criteria, which could lead to potential inconsistencies.
- Limited Employer Recourse: The rule does not offer a formal process for employers to object to the selection of a non-employee third-party representative.
- Property Rights and Confidentiality Risks: There are no specified limits as to third-party access, therefore the new rule creates the possibility that third-party employee representatives may gain access to confidential, proprietary, or sensitive information.
- Facilitated Union Access: Easier access for union organizers could influence employer strategies during organizing campaigns.
Of note, it appears that, as the rule is written, even employees who do not have certified union representation can request a union representative during an OSHA investigation.
Recommended Actions for Employers
To navigate these changes effectively, employers should consider updating their inspection management procedures for on-site supervisors and managers. For example, procedures should be updated to ensure that supervisors and managers are aware of the requirement to allow third-party representatives to accompany a CSHO during an OSHA inspection. Further, employers should put practices in place to safeguard their property rights and sensitive information in the event of an inspection. As always, employers should make sure they are up-to-date on safety procedures and OSHA rules and regulations.
The rule represents a significant shift for employers subject to workplace safety and health inspections, with broad implications for employers across a variety of sectors.