OSHA Broadens “Walkaround Rule,”  Potentially Widening Who May Represent Employees during OSHA Worksite Inspections

by Brad Smith

September 10, 2024

New changes to the Occupational Safety and Health Administration’s rules regarding who can represent an injured employee during workplace OSHA inspections raise questions with employers about who may now gain access to its worksites and what steps should be taken to protect its interests.

Earlier this year OSHA modified regulation, 29 C.F.R. § 1903.8(c), also known as the “Walkaround Rule,” to potentially allow non-employee third parties to represent employees during OHSA workplace inspections. Prior to the modification, which took effect on May 31, 2024, employees were typically limited to choosing other employees as their representative during OSHA inspections. Under the new rule, employees may be permitted to select a third-party, non-employee, representative, if the third-party may be “reasonably necessary to the conduct of an effective and thorough inspection based upon skills, knowledge, or experience such as knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.” 

OSHA does not specifically identify the third parties who can now be employee representatives under the modified rule, but the new language is general enough to raise concern about how broadly it will be interpreted and applied. Opponents of the modified rule fear it could mean that parties such as competitors, attorneys, activists, union representatives or other potentially unwelcome visitors could qualify under the broadened language and gain access to worksites, inspections and insight that was  previously more restricted. OSHA, on the other hand, believes the modification brings the rule more in line with its overall intent—to conduct more thorough inspections.

The amendment by OSHA does not change that employers can still limit access to some areas of the workplace to protect trade secrets, the inspections cannot disrupt normal business activities, and does not prevent the Compliance Safety and Health Officer from denying access parties who may be disruptive or are not found to be “reasonably necessary” to conduct an effective and thorough investigation.

Several outside agencies, including the AGC and U.S. Chamber of Commerce have challenged the modification, including filing multiple lawsuits requesting courts to vacate or limit application of the new rule. Whether the amendment will stand up against legal scrutiny or will need to be remodified has not yet been decided.

All employers should be aware of the change and take necessary steps to protect workplace safety, trade secrets, confidential information, and to decrease the risk of liability created by non-employees having access to workplaces during OSHA inspections. Some potential issues that should be addressed are liability waivers, strict rules or protocols for inspections, identifying confidential information that needs to be protected or locations that should have restricted access, and identifying employer representatives that may be necessary to rebut or counter employee representatives. Employers should also be prepared to push back when it appears that application of the new rule will permit unreasonable access beyond the scope and intent of the inspections or cause prejudice to their company. In some severe instances, the employer should consider invoking its right to refuse the OSHA inspection and force OSHA to seek a subpoena. Doing so may permit the employer to limit who is allowed to participate in the inspection.