New OSHA Rule Gives Hazy Guidance on Safety Inspection Tagalongs

A new OSHA rule on workplace inspections has left employers with a vague roadmap for how inspectors approve outside worker representatives for “walkarounds” and how to challenge those decisions.

The rule, which goes into effect May 31, broadens the scope of who can accompany US Occupational Safety and Health Administration inspectors as they tour worksites for hazards, take pictures, and talk with employees. While worker advocates have praised the measure, employer representatives say it could allow labor activists into non-union workplaces and potentially influence organizing campaigns.

Employers need to get answers before a walkaround begins if an OSHA inspector agrees to a “third-party” worker representative, management-side attorneys said.

Ask the inspector if the third-party representative was designated by workers, what skills the person brings to the inspection, and why they’re necessary for the inspection, said Brian Hendrix, a partner with Husch Blackwell LLP in Washington.

Under the old rule, OSHA could invite an outsider to participate as a worker representative, but those people generally needed to have a health or safety skill. Now the agency is also allowing third parties who can “increase worker involvement in the inspection by facilitating communication between workers and OSHA.”

“What’s new here is extending the right of workers who are seeking a walkaround representative to get someone who has other kinds of qualifications,” said Eric Frumin, health and safety director for the union-backed Strategic Organizing Center.

Open Issues

The rule and its preamble are vague on how a third party would become involved in the inspection, said Brent Clark, a partner with Seyfarth Shaw LLP in Chicago.

If the outside representative arrived at the inspection at the same time as the inspector, that could lead to the employer believing OSHA had tipped off the representative and employees about the inspection, Clark said.

Federal law and OSHA rules prohibit OSHA from notifying employers in advance of inspections, except in specific situations, and employers believe the same restriction should apply to workers and their supporters.

If the outside worker representative didn’t know of the inspection in advance, that would likely mean the representative wouldn’t join the inspection until it was well underway, Clark said.

The rule seems to limit the third-party representative’s participation only in the walkaround portion of the inspection and doesn’t allow them to join other aspects of inspections such as document reviews, Clark said.

OSHA issued guidance for the rule on March 29 in the form of answers to frequently asked questions. The agency didn’t immediately respond to a request about whether more guidance would be coming.

Varied Implementation

Attorney Courtney Malveaux, the Richmond, Va.-based co-leader of Jackson Lewis PC’s workplace safety and health practice group, said implementation of the rule could vary because it gives inspectors wide discretion on who participates and how an inspection is conducted.

Malveaux said he expects the directors of OSHA’s 85-plus area offices to set expectations for worker and third-party participation, especially if an inspector is inexperienced. According to OSHA data, at the start of fiscal year 2024, almost half of the agency’s 878 inspectors had two years or less experience in their jobs.

In practice, Malveaux said, one area director may want inspectors to actively seek out a worker representative at each inspection, while another area director may leave it to workers to present their own representative.

There is also the question of the inspector determining if a prospective third-party participant representing worker meets the rule’s requirement of being “reasonably necessary” to aid the inspection, Malveaux said.

Clark of Seyfarth Shaw said employers that object to the presence of a third-party representative could tell OSHA that the person won’t be allowed in the worksite. That could lead to negotiations between the employer and OSHA about the inspection’s conduct.

If no resolution is reached, that could result in OSHA asking a federal district court to issue an inspection warrant, giving the employer the opportunity to present its objections, Clark said.

Ask Questions

Given the rule’s lack of clarity, employers can gain an understanding of the reasoning behind the third party’s selection by preparing questions in advance, attorneys said.

Their presence could be benign, such as helping translate what workers said, Husch Blackwell’s Hendrix said. Or it could be an issue that raises red flags for employers, such as union officials getting access to a non-union workplace, he said.

Worker advocate Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health, cited a real example of third-party participation aiding OSHA.

The initial OSHA inspection of a lead recycling plant didn’t turn up areas that were contaminated with lead, in part, because the inspector didn’t speak Spanish and couldn’t effectively talk with workers, Goldstein-Gelb said.

Workers then reached out to the Massachusetts Council for Occupational Safety and Health for help, she said. The group contacted OSHA and provided a Spanish interpreter for a second inspection that did identify lead contamination.

Many workers are either unaware of what OSHA does or afraid of losing their job if they speak up during an inspection, Goldstein-Gelb. The new rule could encourage workers to speak up if they see inspectors encouraging participation, she said.