By: Joseph L. Stine, Partner
jsine@cohenseglias.com
(267) 238-4775

Since 1970, OSHA has provided both the employer and employees’ representatives the opportunity to accompany OSHA during its physical inspection, or “walk around,” of the job site. However, on April 1, 2024, OSHA issued a new, final rule that significantly changed the scope of who can participate in the walk around.

Prior to the enactment of this rule, OSHA required employees’ representatives to be employees of the employer unless, in the judgment of the Compliance Safety and Health Officer (CSHO), good cause was shown to establish that a third party was “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” CSHOs usually narrowly applied the exception to safety engineers or industrial hygienists whose specific expertise was necessary to assess a particular condition at the site. However, under the new rule, OSHA clarified that the CSHO may allow any third-party representative to participate in the walk around provided they are “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience.” The new rule is intended to make it clear that permissible third-party representation during walk arounds expands well beyond safety engineers and industrial hygienists.

Who can the employees select as their representative under the new rule?
Under the new rule, employees can select a third-party representative whose interests may not be aligned with the employer, such as non-elected union organizers, attorneys, community organizers, interpreters, or activists. Ultimately, the determination of whether those individuals are “reasonably necessary” to conduct the inspection or have the appropriate “knowledge, skills, or experience” to assist lies solely with the CSHO.

What can the employer do if it objects to the employees’ representative?
The new rule does not change the CSHO’s obligation to determine with “reasonable certainty” that the third party is the employees’ representative. In order to do so, the CSHO must consult with a reasonable number of employees in the workplace. Thus, if the employer has an objection to the individual selected, it should request that the CSHO confer with a reasonable number of employees in the workplace to ascertain whether the third party is their selected representative.

What should the employer do if the employees’ representative disrupts the inspection?
Even if the CSHO initially allows the third party to participate in the walk around, it can withdraw its approval and deny the right to accompaniment to any person if their conduct interferes with a fair and orderly inspection. Further, everyone’s conduct during an inspection must not unreasonably disrupt the employer’s operations. Thus, if the employees’ third-party representative is disrupting the inspection or the employer’s operations, the employer should request that the CSHO prevent the representative from continuing to participate in the walk around.

What other steps should employers take if a third-party representative participates in the walk around?
If a third-party representative is participating in the walk around, employers should be careful to protect their confidential information and trade secrets from inadvertent disclosure. Critically, the new rule does not change an employer’s right to declare certain areas off-limits to representatives who do not work in that particular area to prevent the disclosure of trade secrets or confidential information.

Companies should be prepared to identify areas that contain confidential information or trade secrets at the start of the inspection (during the opening conference) so that third-party representatives do not wander into areas where they can obtain the company’s confidential information.

The new OSHA walk around rule takes effect on May 31, 2024. If you have any other questions about the new OSHA walk around rule, please reach out to the attorneys at Cohen Seglias. www.cohenseglias.com