OSHA's New Worker Walkaround Rule: A Comprehensive Guide For Employers

Friday, 19 July 2024, 11:33 am
Press Release: Hugh Grant

The Occupational Safety and Health Administration's (OSHA) recently implemented Worker Walkaround Rule represents a significant shift in workplace safety inspection protocols. This rule, effective May 31, 2024, grants employees greater autonomy in choosing representatives to accompany OSHA inspectors during walkaround inspections.

Key Changes Introduced by the Rule

The new rule amends existing regulations (29 CFR § 1903.8(c)) in two critical ways:

1. Expanded Eligibility for Third-Party Representatives: Previously, only employee representatives from the same company could accompany inspectors. Now, employees can designate a non-employee third-party representative to act on their behalf.
2. Broadened Qualifications for Third-Party Representatives: Previously, such representatives were limited to credentialed professionals like certified industrial hygienists or safety engineers. The new rule allows for any individual with "relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills."

Understanding the Rule's Background

The rulemaking process behind this change has a contentious history:

• Obama Era Precedent: The rule stems from a Letter of Interpretation issued during the Obama Administration. This letter, and subsequent legal challenges, laid the groundwork for the current rule.
• Rulemaking Process: Concerns have been raised regarding the rule's development process, with some arguing it lacked sufficient transparency and public input.

Who can be a Walkaround Representative?

Employees have the right to designate a representative to accompany the OSHA inspector during a workplace inspection. This representative can be:

• A fellow employee: This is the most common scenario. Employees can choose a co-worker they trust to represent their interests during the inspection.
• A third-party representative: Employees can also designate a health and safety professional, union representative, or other outside party to accompany the inspector. However, OSHA must determine if there is "good cause" for allowing a third-party representative. This means the representative's presence must be reasonably necessary for an effective and thorough inspection. This could be due to the representative's expertise in specific workplace hazards, language skills needed for communication with employees, or other relevant factors.

What is the Role of a Walkaround Representative?

The walkaround representative's role is to accompany the OSHA Compliance Safety and Health Officer (CSHO) during the physical inspection of the workplace. They can assist the inspection in several ways, such as:

• Explaining how equipment, processes, or operations work.
• Providing information about workplace policies and procedures.
• Interpreting communication between the inspector and employees who may not share the same language.

Important Points to Remember for Walkaround Representatives

• There are no restrictions on what a walkaround representative can wear during the inspection. OSHA avoids subjective determinations about attire as long as it doesn't impede safety or the inspection process.
• If a third-party representative is designated, the time OSHA allows for them to travel to the site depends on the urgency of the inspection. In some cases, the inspection may proceed without delay.
• OSHA typically does not provide advance notice of an inspection to either the employer or employee representatives. There are limited exceptions, but they require special authorization from an OSHA Area Director or designee.

Implications for Employers

Employers should be aware of the potential consequences of this rule:

• Increased Scrutiny: Third-party representatives with potentially adversarial motives, such as union representatives or legal counsel, may be present during inspections. This could lead to more intensive scrutiny of workplace safety practices.
• Communication Challenges: Language barriers may arise if a representative lacks the necessary language skills to effectively communicate with inspectors and employees.
• Strategic Considerations: Employers may need to adjust their strategies for preparing for and managing OSHA inspections to account for the presence of third-party representatives.

Expected Legal Challenges

The legality of the rule is likely to be contested:

• Employer Concerns: Employer groups may file lawsuits challenging the rule's validity, arguing it oversteps OSHA's legal authority or creates an undue burden on businesses.
• Potential for Injunctions: Employers might seek injunctions to temporarily halt the rule's enforcement while legal challenges are ongoing.

Strategies for Managing OSHA Inspections

Despite these potential challenges, employers can still take proactive steps to navigate OSHA inspections under the new rule:

• Stay Informed: Stay updated on the latest developments regarding the rule and any legal challenges that may emerge.
• Review Internal Procedures: Review and, if necessary, revise internal procedures for handling OSHA inspections. This may involve training managers and supervisors on how to interact with third-party representatives.
• Maintain Open Communication: Maintain open communication with employees about their rights and responsibilities regarding workplace safety inspections.
• Prepare for Inspections: Continue to prioritize workplace safety and maintain a comprehensive safety program. This will help demonstrate a proactive approach to safety and potentially mitigate concerns raised during inspections.

The new Worker Walkaround Rule represents a significant change for employers. While the rule's long-term implications remain to be seen, employers can take steps to mitigate potential risks by staying informed, adjusting internal procedures, and maintaining a strong safety program. Proactive employers will ensure they are prepared to handle OSHA inspections under the new rule.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Please consult with an attorney regarding any specific questions or concerns you may have about OSHA's New Worker Walkaround Rule.

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