A new rule clarifying who is permitted to accompany an OSHA Compliance Safety and Health Officer (CSHO) during an inspection of an employer’s facility will go into effect on May 31, 2024.
In issuing the “Worker Walk Around Final Rule” on April 1, 2024, the U.S. Department of Labor broadened the category of non-employee third parties who can accompany the CSHO as an employee representative. It effectively allows anyone (whether an employee or not) to be the employee representative, so long as that individual can convince the CSHO that good cause exists that their accompaniment “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”
The rule gives the following considerations for a CSHO to make a good cause determination: whether the third party has the requisite knowledge, skills, language or communications skills, or skills or experience with hazards or conditions in the workplace or similar workplaces to aid in the inspection. The employer retains the right to object to the CSHO as to the inclusion of any third-party representative.
The prior iteration of the rule mandated that the representative of the employee(s) must be an employee, unless there was good cause that the presence of a non-employee third party — such as an industrial hygienist or safety engineer — was reasonably necessary to aid the overall inspection. So long as good cause was established, then that third-party non-employee could accompany the CSHO during the inspection.
It is important to keep in mind the purposes of the third-party representative. The good cause standard exists to ensure that the third-party’s participation will aid the inspection and the issuance of this new rule does not change that purpose. The third-party representative’s role is to accompany the CSHO during the inspection of the workplace, attend the opening and closing conferences, and ask clarifying questions, as needed. They do not attend private interviews conducted by the CSHO with individual employees unless the employee requests that attendance.
During the inspection, the CSHO retains the authority to determine whether the third-party representative’s conduct is aiding the inspection. The CSHO can deny the representative the right to accompany during the inspection if, for example, the representative is discussing unrelated matters with employees, is disrupting the inspection, or is engaging in union organizing.
This rule also does not alter the employer’s right to designate some areas of the workplace as containing or possibly revealing trade secrets. OSHA will treat the area(s) as such so long as there is no obvious reason to question the claim. Thus, an employer retains the right to request that, for any area containing trade secrets, the employee representative is an employee in that area or is an employee authorized to enter it.
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