by The Occupational Safety and Health Administration (OSHA) has issued its Final Rule regarding the right of employees to designate a representative to accompany OSHA worksite inspections. The new rule is effective May 31, 2024. Under the Occupational Safety and Health Act, employees and employers have the right to have representatives accompany agency officials during physical inspections of worksites. The updated rule clarifies that employees can designate either an employee or a non-employee third party as their representative.
The regulations do not provide specific qualifications for walkaround representatives who are employees. The Final Rule, however, states that a non-employee representative must be reasonably necessary to the conduct of an effective and thorough inspection to qualify as an employee representative. The rule provides that OSHA will determine if a non-employee representative meets the qualification based on skills, knowledge, or experience regarding hazards or conditions in similar workplaces.
The walkaround employee representative will usually be a union representative for workplaces represented by a union. For workplaces not represented by a union, the walkaround representative may be an employee or a non-employee meeting the rule requirements, including someone affiliated with a union.
The Final Rule differs in some details from the one initially proposed in the fall of 2023. The agency dropped its original reference to the right of the third-party employee representative to ‘participate’ in the OSHA walkaround. The final rule now clarifies that the involvement of the third party is limited to accompaniment during the physical inspection. It is clear from the agency’s Preamble to the Final Rule that third parties are excluded from other aspects of the inspection, such as employee or management interviews or review of employer records given to OSHA.
Safety and human resources staff should review the OSHA FAQs on the expected application of the new rule to assess the potential impact on specific workplaces:
