New OSHA Rule Clarifies Employee Representation During Inspections

The U.S. Occupational Safety and Health Administration (OSHA) adopted a regulation, on March 29, 2024, clarifying the right of employees to authorize a representative to join OSHA workplace inspections. The worker representative may be an employee or a non-employee. This is consistent with OSHA's prior practice in conducting inspections. However, a 2017 court decision ruled that the agency's regulation in effect at the time only permitted employees to be authorized as representatives.

The revisions in the final rule, known as the "Walkaround Rule," clarify that:

• the representative(s) authorized by employees may be an employee or a non-employee;
• non-employee third parties may accompany the OSHA Compliance Safety and Health Officer (CSHO) during the inspection, if the CSHO determines that good cause has been shown why the 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); and
• the third-party representatives need not have formal credentials, such as an industrial hygienist or safety engineer.

According to OSHA, the new rule is not a safety and health standard and does not impose any new compliance obligations for employers. The rule takes effect on May 31, 2024.

The final rule is here, a fact sheet is here, and Frequently Asked Questions are here.

Contact: Karen Lipson, klipson@leadingageny.org