OSHA Rule Allowing Third Parties to Attend Walkaround Inspections Finalized
In late March 2024, OSHA amended the OSH Act in the section pertaining to representatives on walkaround inspections. Specifically, the regulation had stated that only employees of an organization could be authorized as employee representatives on inspections.
Why the Change?
The rule was modified in response to a court decision from 2017, which found that although OSHA’s practice of allowing third parties to be employee representatives on walkaround inspections was a valid interpretation of the act and consistent with the goals of the regulation, it was not in alignment with the rule as it was written at that time. This distinction is important for employers, safety professionals, and legal representatives to understand.
As such, OSHA revised the regulation’s language regarding employee representation on inspections. According to OSHA, when employees choose a non-employee to represent them during an inspection, they must show the individual is reasonably necessary to aid in the inspection.
With the amendment to the language, the representative may be an employee of the organization or a non-employee third party. OSHA further states that a third-party representative may be reasonably necessary because of their “knowledge, skills, or experience.”
Employers have objected to the change because the third party often, although not always, is a union representative. Employers argue that having individuals from outside of their organization, particularly union representatives, on their sites causes undue friction between the workforce and management and could expose trade secrets to outside interests. (Employers could require a third party to sign a confidentiality agreement. Consult a legal representative for guidance.) Furthermore, such individuals often have a separate agenda in attending inspections like encouraging employees to seek union membership while on the walkaround inspection.
Because the language is somewhat vague about what qualifications the third party must have to participate in walkaround inspections, it leaves the door open for any number of individuals to insist they be allowed to participate, even if their interests run counter to that of an employer. If an employer has more than one employee, only two employees need to authorize the representative to attend walkaround inspections.
Are There Limits to What the “Third-Party” Can Do?
There are numerous constraints placed on what actions the third-party employee representative can perform during the inspection. Taking photos and measurements, for example, is generally prohibited unless the employer or employer representative has authorized this. Actions taken by a third party must not interfere with OSHA’s Compliance Safety and Health Officer’s (CSHO) inspection of the facility.
As with many aspects of inspections, it falls to OSHA’s CSHO to determine whether or not the third party is qualified to attend the inspection. If the CSHO determines that an individual is qualified to participate, the CSHO may subsequently observe the third party during the inspection to ensure that their actions do not interfere with the goals of the inspection. Prohibited behavior includes handing out union cards and distributing similar material without the CSHO’s approval.
According to OSHA, “The employee walkaround representative shall be advised that, during the inspection, matters unrelated to the inspection shall not be discussed with employees.” Employers could interpret that to mean that a union representative attending an inspection as the employee representative is prohibited from encouraging employees to join the union.
The final rule is effective May 31, 2024. While there will most likely be legal challenges to this rule, employers should prepare for the inevitability of third-party representatives on OSHA inspections.
If you would like to discuss how this rule may impact your facility, contact Walden’s EHS leader, David Garner, via email at dgarner@walden-associates.com or by calling 516-789-2972.
