Under Section 8(e) of the Occupational Safety and Health Act (OSH Act), employees and employers are permitted to have a representative accompany OSHA Compliance Officers (“CSHOs”) during physical inspections of worksites as part of OSHA inspections. These physical inspections have been coined as “walk arounds.”
On April 1, 2024, OSHA clarified its final rule regarding the rights of employees to authorize a representative to accompany an OSHA compliance officer during walk arounds. Under this final rule, the representative can now be another employee or a non-employee. OSHA has justified this rule on the grounds that it will allow for more thorough and efficient inspections, because an employee can look outside of the workplace for support during inspections.
This does not mean that an employee has free-range to call upon any non-employee buddy to step into his or her place during an on-site inspection. Rather, a non-employee must be reasonably necessary to the conduct of the inspection. OSHA’s guidance that accompanies the new rule explains that a non-employee or third-party representative is considered “reasonably necessary” because of his or her relevant knowledge, skills, or experience, including experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills. The authority lies with the CSHO to determine whether the third-party is considered “reasonably necessary.” To the extent an employer objects to the qualifications of the third-party, the employer should raise the concerns will the CSHO as soon as possible.
So what changes for employers? The final rule concerns an employee’s statutory right to designate a representative during a walk around, so it does not impose any additional compliance obligations on employers. However, the rule does raise privacy concerns for employers. Namely, an employer should take steps to protect its confidential information and trade secrets from any non-employee representative during a walk around. Fortunately, the new rule does not grant non-employee representatives with any rights or entitlements to view an employer’s confidential information or trade secrets.
If you have any questions regarding OSHA’s worker walk around final rule, please contact Jaycee Booth or another member of the Labor & Employment Practice Group.