The OSHA Inspector Is Here, and He’s Not Alone

Fast forward: It’s June 1, 2024, and you’ve just received a call from one of your Safety Managers. He tells you that a Compliance Safety and Health Officer (CSHO) has arrived at the workplace and wants to conduct an inspection. But that’s not all. The CSHO is claiming that the OSHA complaint was filed by an authorized employee representative—a third-party union official. And, the CSHO says, this union official will be coming with her on the inspection. A union rep? What does that have to do with safety, you wonder. Surely, you think, we don’t have to allow this union representative onsite, right? Under OSHA’s revised “Walkaround Rule,” you are most likely wrong.

On March 29, 2024 the Department of Labor (DOL) published a final rule ostensibly clarifying the rights of employees to authorize representatives to accompany an Occupational Safety and Health Administration (OSHA) compliance officer during an inspection of their workplace. In pertinent part, the revised Walkaround Rule states:

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).

Principally, OSHA’s revised Walkaround Rule implements two critical changes that employers need to know. First, the new rule opens the door for non-employee third parties to accompany the CSHO during an inspection. The old version of OSHA’s Walkaround Rule limited employee representatives to current employees—the new rule expands the definition to also include third parties.

Second, the new rule also widens the possible pool of eligible third parties. Under the old rule, OSHA suggested that non-employee third parties would be permissible only if they were individuals with safety-oriented formal qualifications, such as an industrial hygienist or a safety engineer. Under the new rule, OSHA eliminated any reference to formal qualifications and instead states that any third party is permitted as long as they have “relevant knowledge, skills, or experience.” Thus, individuals such as union representatives, community activists, and potential expert witnesses are increasingly likely to be allowed entry.

Employer Concerns

OSHA’s decision to empower CSHOs to allow non-employee third parties to join them during the inspection process brings with it a slew of complex concerns that employers will be forced to consider:

1. “Good Cause” and “Reasonably Necessary.” Under the new rule, CSHOs are empowered to make on-the-spot decisions as to whether “good cause” has been shown that a non-employee third-party representative is “reasonably necessary” to participate in an inspection. But what do those terms mean? OSHA’s guidance is vague and unhelpful, defining “reasonably necessary” as any time a third party “will make a positive contribution to a thorough and effective inspection.” Employers will need to learn how best to challenge third-party representatives under this flexible standard.
2. No Formal Objections. The final Walkaround Rule does not provide employers with a formal procedure for making objections to non-employee third-party representatives. According to OSHA, the only way for an employer to object to a representative is by raising its concerns to the CSHO on-site and having the CSHO make an on-the-spot decision. Otherwise, the employer’s only recourse is to deny entry and force OSHA to get a warrant.
3. Multiple Employee Representatives. According to OSHA guidance, there is no limit on how many authorized employee representatives may be allowed to participate in an inspection. This concern is amplified by the fact that it takes only two or more employees to authorize a representative under OSHA’s revamped rule. Accordingly, it is not difficult to imagine a scenario in which a CSHO greenlights a union representative and a potential expert witness to join an inspection.
4. “Private” Interviews. Under the new Walkaround Rule, non-employee third-party representatives are authorized to accompany the CSHO during the inspection, and to participate in opening and closing conferences. This includes the right to participate in informal interviews during the physical inspection. Furthermore, upon request, the non-employee third party is also permitted to participate in the CSHO’s “private” interviews with employees. This unprecedented access to information has the potential to dramatically increase unionization campaign efforts, litigation, and the number of OSHA complaints raised.

Preparing for Enforcement

OSHA’s revised walkaround rule goes into effect on May 31, 2024, unless challenged in court and stayed. In the meantime, employers should prepare a game plan for dealing with CSHO requests to bring non-employee third parties into the work site to participate in OSHA inspections. In doing so, employers should:

1. Consider developing a training program to educate managerial employees on their rights and options, including their role during the inspection process
2. Consider which circumstances, if any, under which it may be appropriate to deny OSHA entry
3. Consider whether to require a non-employee third party to sign a non-disclosure agreement before entering the workplace to protect trade secrets or confidential information and
4. Consider whether to require a non-employee third party to sign a waiver agreeing to hold the employer harmless for any injuries sustained during the inspection, or for harm caused to persons or property during the inspection

If your company has any questions about OSHA’s revised Walkaround Rule or about how to best prepare for complying with the new inspection requirements, please contact the authors of this article or any attorney in Venable's Labor and Employment Group.