A new OSHA rule – the so-called “walkaround” rule – clarifies that employees may designate a non-employee third party, such as a union rep, to be their representative and accompany OSHA inspectors during workplace safety inspections.
The final rule was published in the Federal Register on April 1 – and is set to take effect on May 31.
Why was the rule changed?
In Nat’l Federation of Independent Business v. Dougherty, No. 3:16-CV-2568-D, 2017 U.S. Dist. LEXIS 15915 (N.D. Tex. 2/3/17), a federal court in Texas found that OSHA’s practice of allowing “third parties to be employee walkaround representatives was a valid interpretation of the law but was not consistent with the regulation as then written,” the agency explained.
Shortly after the court’s decision, OSHA began the rulemaking process to correct the deficiency.
What did the new OSHA rule change?
Prior to the new OSHA rule, employees’ representatives generally had to be employees of the company, unless an OSHA inspector decided a third-party expert was “reasonably necessary” to conduct “an effective and thorough physical inspection of the workplace.”
The reg included specific examples of professionals who qualified as a third-party expert, such as an “industrial hygienist or safety engineer.” In such cases, the third-party expert was allowed to accompany the OSHA compliance officer during the inspection.
Under the new rule, employees will have the right to choose whether the representative is an employee or a third party. Even so, the representative must be “reasonably necessary” to aid the inspection.
According to an FAQ guidance sheet released by OSHA, the revisions in the walkaround final rule clarify that:
- The representative(s) authorized by employees may be an employee of the employer or a non-employee third party
- Employees’ options for third-party representation during OSHA inspections are not limited to individuals with formal credentials, such as an industrial hygienist or safety engineer, and
- A third-party rep authorized by employees may be reasonably necessary to conduct an effective and thorough physical inspection of the workplace by their knowledge, skills, or experience. OSHA says this may include technical knowledge or practical experience about the processes and hazards present in the workplace, or language and communication skills that facilitate feedback from employees.
Conditions on third-party reps
In some cases, third-party reps can be denied access to participate in the safety inspection.
First things first: The OSHA compliance officers still have the authority to determine whether a third party has been authorized by employees to be their walkaround representative.
Plus, OSHA compliance officers have the authority to “prevent an individual from participating in the walkaround inspection if their conduct interferes with a fair and orderly inspection.”
Moreover, the new OSHA rule does not affect the employer’s right to limit the entry of employee-authorized reps into work areas that contain trade secrets.
What does this mean for employers?
A new OSHA rule often means new compliance obligations.
In this case, the rule clarifies employees’ right to designate a walkaround rep during an OSHA safety inspection but “does not impose any compliance obligations for employers,” OSHA clarified in the FAQ guidance.
But the final rule “does not provide employers with a mechanism to object to the selection of a non-employee third-party representative,” according to employment attorneys Tim Garrett and Maja Hartzell of the firm Bass, Berry & Sims.
According to the FAQ guidance, employers may object to a representative by raising concerns to the OSHA compliance officer, who has the authority to resolve the dispute.
Employment attorney Jon Hyman predicts the rule “will almost certainly face a court challenge before” it is scheduled to take effect.
It’s unclear whether additional guidance will be published before May 31 when the new rule takes effect. We’ll keep you posted.
