OSHA Announces Final Rule on Worker Walkaround Representative Designation

On March 29, 2024, OSHA announced its final rule that clarifies the rights of employees to authorize a representative to accompany an OSHA compliance safety and health officer (CSHO) during a walkaround inspection of their workplace. The final rule was published in the Federal Register on April 1, 2024. The rule will go into effect May 31, 2024.

Final Rule Overview

The Occupational Safety and Health Act (OSH Act) gives employers and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection. The final rule clarifies that, consistent with the law, employees may authorize another employee to serve as their representative or select a third-party nonemployee.

These third-party representatives may join the CSHO during inspections if, according to the CSHO’s judgment, there is sufficient reason to believe they can contribute to the inspection process. OSHA states it is maintaining the requirement that good cause be shown that the third-party representative is reasonably necessary to aid in the conduct of an effective and thorough physical inspection of the workplace.

In addition, the final rule also makes it clear that third-party involvement may be warranted due to the third parties’ relevant expertise, experience or language skills concerning workplace hazards or conditions. OSHA regulations require no specific qualifications for employer or employee representatives who are employed by the employer. OSHA states it determined that these final rule clarifications facilitate workplace inspections by empowering employees to choose representatives who can effectively assist the CSHO during physical inspections. Employee representation during inspections is crucial for OSHA to gather essential information about workplace conditions and hazards. This rulemaking does not change the role of an employee’s third-party representative. The role of the representative is still only to accompany the CSHO for the purpose of aiding in the physical OSHA inspection and attend the opening and closing conferences.

The final rule’s revisions better align OSHA’s regulation with the OSH Act and enable the agency to conduct more effective inspections. In addition, OSHA states that this final rule creates a return to a more fair, balanced approach that Congress had originally intended.

Employer Next Steps

Employers should review the new rule and allow employees to identify and select a trusted and knowledgeable representative to assist in facilitating a CSHO’s information-gathering in case of an OSHA inspection. 

This Legal Update is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice. ©2024 Zywave, Inc. All rights reserved.