On April 1, 2024, the Occupational Safety and Health Administration (OSHA) published its Final Rule, Worker Walkaround Representative Designation Process, in the Federal Register.
The Final Rule takes effect today, May 31, 2024. The Final Rule clarifies the rights of employees to authorize a representative to accompany an OSHA compliance officer during workplace inspections.
KingSpry’s Employment Law Chair, Avery E. Smith, Esq., and Employment Law Attorney, Sarah Modrick. Esq., LLM, review the Final Rule and detail how it impacts workplace inspections.
Inspection Rights
The Occupational Safety and Health Act (the “Act”) provides that a representative of the employer and a representative of the employees have the opportunity to accompany the OSHA official during the physical inspection of the workplace, which is commonly referred to as “the walkaround.”
The Act, at 29 C.F.R. § 1903.8(c), provides that a representative authorized by th employees “shall be an employee(s) of the employer.” However, the Act also created an exception for non-employees to represent the employees during the walkaround when good cause is shown. Two examples of such “non-employee” representatives are safety engineers and industrial hygienists.
In 2017, a district court made a decision in contrast with OSHA’s long-standing application of 29 C.F.R. § 1903.8(c). As such, the Final Rule has the narrow purpose of making two (2) changes to the Act at 29 C.F.R. § 1903.8(c).
The First Change
First, in response to the district court’s decision, the Final Rule clarifies that employee representatives may either be an employee of the employer or a third party.
The Second Change
Second, the Final Rule clarifies that a third-party representative authorized by employees may have a variety of skills, knowledge, or experience to aid the OSHA compliance officer’s inspection. As such, the third-party exception is not limited to only a safety engineer or industrial hygienist.
Effective Date
The Final Rule takes effect on May 31, 2024.
Revisions to Section 1903.8(c)
Upon the effective date, 29 C.F.R. § 1903.8(c) will be revised to state:
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 Challenges to the Final Rule
Although the Final Rule is still set to take effect, a lawsuit has been filed by the United States Chamber of Commerce and business groups to challenge the constitutionality of the Final Rule.
OSHA emphasizes that the Final Rule does not change an OSHA compliance officer’s authority to determine whether good cause has been shown nor their authority to deny the right of accompaniment to any individual whose conduct interferes with a fair and orderly inspection.
Employers should appoint a business leader to review the Final Rule and ensure that their business practices and procedures recognize the walkaround rights set forth in 29 C.F.R. § 1903.8(c). Employers may also find it beneficial to create an OSHA response team that is trained to handle OSHA inspections, when they arise.
Employers with questions regarding OSHA’s new Rule should contact their legal counsel or KingSpry’s Employment Law Team.
