The Occupational Safety and Health Administration (OSHA) recently issued a final rule allowing an employee or a third-party non-employee representative, such as a union representative, to accompany an inspector during a safety walkaround at an employer’s facility. The rule takes effect on May 31. OSHA has issued FAQs addressing the final rule.

Employee Representation

The walkaround rule allows employees to designate a third party (non-employee) to join the inspector during a visit. The inspector will approve the representative if “reasonably necessary” to conduct the inspection.

Previously, the representative had to be an “industrial hygienist or a safety engineer.” The new rule removes this requirement, allowing a union representative to represent the employees even in a non-union workplace. The rule does not require all employees or even a majority to request a third-party representative; “more than one” employee is sufficient.

Limits on Third-Party Participation

The rule limits the third-party representative’s participation in the walkaround. The representative may:

• Accompany the OSHA inspector and ask clarifying questions;
• Attend the opening and closing conferences;
• Attend interviews with employees if requested by the employee.

Employer Objections

The employer may object to the appointment of a third-party representative, and the inspector may deny or allow access. The inspector will consider the representative’s knowledge, skills, or experience and whether she or he can aid the inspection. The inspector may also confer with the employees who designated the representative.

Practical Challenges

OSHA is not required to give advance notice of an inspection, and arranging for the representative can be challenging. The employer or the employees may request a delay in the inspection, but the delay is limited to one hour. The inspector may refuse to delay if the inspection:

• Involves imminent danger;
• Involves fatalities or catastrophes, particularly if a delay would impact OSHA’s ability to gather or preserve evidence;
• Requires OSHA to begin an inspection at a certain time due to shift changes;
• Could result in disruptions to business operations, public safety, welfare, or transportation.

Implications for Employers

Employers of unionized workforces can expect employees to exercise the right to involve a union representative in an inspection. Non-union employees may also take advantage of the expanded definition of a third-party representative.

For questions about OSHA inspections or any other HR matter, AIM members may call the AIM HR Helpline at 800-470-6277 or email helpline@aimnet.org