OSHA to Allow Third Parties to Represent Employees During Walkarounds
Author: Michael Cardman, XpertHR Senior Legal Editor
August 29, 2023
Third-party representatives authorized by employees - including outside people affiliated with a union or a community organization - soon may be formally allowed to accompany the Occupational Safety and Health Administration (OSHA) on workplace inspections.
The Occupational Safety and Health Act (OSH Act) gives both employers and employees the right to designate a representative to accompany OSHA compliance officers during physical inspections of a workplace (sometimes known as "walkarounds").
OSHA has long interpreted one of its own regulations as allowing third-party representatives authorized by employees to accompany the agency on its walkaround inspections when it is "reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace." However, in 2017, a federal district court held the regulation generally requires that employee representatives be employees themselves.
As a result, OSHA announced that tomorrow it will propose to update its regulation to explicitly clarify that the representatives authorized by employees may be an employee of the employer or a third party.
OSHA also will clarify that third-party representatives may be necessary by virtue of their "relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills." This way, employees' options for third-party representation during OSHA inspections will no longer be limited to only those individuals with skills and knowledge similar to that of the two examples provided in existing regulation: Industrial Hygienist or Safety Engineer.
"Congress considered worker participation a key element of workplace safety and health inspections when it passed the Occupational Safety and Health Act," OSHA Assistant Secretary Doug Parker said in a statement. "This proposal aims to make inspections more effective and ultimately make workplaces safer by increasing opportunities for employees to be represented in the inspection process."
Employers may submit comments online under e-Docket ID number OSHA-2023-0008 until October 30. After the comment period ends, OSHA will respond to comments and possibly make revisions before publishing a final rule.