OSHA Updates Walk Around Rule for Inspections

A new final rule issued by OSHA gives employees the opportunity to designate an employee representative to accompany an inspector during OSHA inspections. The original rule, at 29 CFR 1903.8(c), allowed for employers to have a representative to accompany an inspector, now employees can designate one as well.

This new rule is a result of a 2017 court case where it was found the rule could be interpreted to allow employees to have a representative, but the rule wasn’t written that way.

What’s a Representative Do?

An example of an employer representative to accompany an OSHA inspector would be someone like iSi who provides a safety specialist to be there on behalf of the employer or provides an industrial hygienist for side-by-side sampling.  Now, employees can designate a representative as well.

Employee representatives can be someone internally employed by the company, a union representative, or a non-employee third party.  Third parties need to be someone “reasonably necessary” who can provide technical knowledge or practical experience about the processes and hazards of the types present in the workplace, or provide language and communication skills that facilitate the gathering of information from employees.

What Do You Need to Do?

The final rule is a right for employees, not a standard that requires employers to have any special compliance duties for.  It’s up to the employees to come up with their representative and there’s no formal instructions on how they should do that.  OSHA gives some suggestions on the process employees can use:

• Chapter 3 of OSHA’s Field Operations Manual says in workplaces where employees are represented by a certified or recognized collective bargaining agent, the highest-ranking union official or union employee representative on-site designates who participates in the walkaround;
• Employee members of an established safety committee or employees at large can designate the employee walkaround representative (per Chapter 3);
• Employees can designate an authorized employee representative when they authorize them to file a complaint on their behalf;
• Employees can also inform the inspector during the walkaround or during interviews that they have an authorized employee representative; or
• An authorized employee representative can also inform the inspector or OSHA Area Office that they represent employees.

No set number of votes is required to designate an employee representative.  It doesn’t even have to be by a majority.  The person just must be authorized by more than one employee.

OSHA inspectors may determine at the complaint stage who the employee representative is based on who files the complaint or if they are represented by a labor organization. When they arrive onsite, inspectors may also ask if the employees have a designated representative or they may ask employees directly who their representative is.

Qualifications of Representatives

Inspectors have the right to question third party employee representatives on their qualifications or purpose for being there to ensure they’re making a positive contribution to a thorough and effective inspection. Third parties must be an aid in an inspection, not a distraction.  Typically, one employer representative and one employee representative will be allowed during the inspection.  An inspector can allow additional representatives in cases where they think it may benefit the inspection.  If there is more than one employer onsite that will be affected by the inspection, they may be allowed to have their own employer and employee representative. 

In cases where the employer disputes the necessity for the employee representative, and vice versa, the inspector has the final determination on who stays and who doesn’t.

Ground Rules for Inspections

All representatives will need to follow rules that all other visitors to the facility would be asked to follow regarding PPE use, confidentiality, limits on access to certain areas due to trade secrets, use of cell phones/cameras, etc.  Limitations on access, however, cannot interfere with the inspection. Special requirements cannot be placed on inspection representatives.  A documented Visitors Policy would be a good item to have on file at your facility to clearly state requirements for all visitors.

Representatives are not allowed to discuss matters unrelated to the inspection with the employees.

Third parties can participate in the opening conference, the inspection and the closing conference.  Both employer and employee representatives are not to be present for private interviews of the employees unless the employee specifically requests their presence.

Third party representatives cannot disrupt the inspection by doing anything that’s not directly related to a fair and orderly inspection.  Some examples would be preventing an inspector from taking photos, videos, or monitoring samples, preventing the inspector from privately interviewing employees, failing to always stay with the inspector, taking unauthorized photographs, handing out materials or cards, or failing to comply with any other ground rules set by the inspector.

Per the current policy, OSHA will only delay their inspection by 1 hour at the most to allow for offsite representatives to get to the facility.   This applied to employer representatives and will apply to employee representatives as well.

Future Challenges to the Rule

Already it appears this rule could be facing some legal challenges.  The rule was put together pretty quickly for an OSHA rule.  Among the issues brough up that challengers have already voiced include the possibility of introducing union reps in non-union workplaces to solicit and campaign during work hours; attorneys may use this to conduct pre-litigation discovery in personal injury or wrongful death actions; it could bring worker advocacy groups and community organizations without safety expertise into the workplace to organize non-union employees; and, competitors or other security threats could potentially gain access to proprietary information for economic or physical harm.

Learn More

Check out the new rule here.  If you have any questions, or would like to know more about the onsite employer representative services we can provide to you in your next regulatory inspection, contact us here.