On April 1, 2024, the U.S. Occupational Safety and Health Administration (OSHA) published its final rule clarifying that employees may designate a non-employee third party as their representative during an OSHA inspection.

Effective May 31, 2024, this final rule amends 29 C.F.R. § 1903.8(c) by making two changes.  First, employees may either select another employee or a non-employee third party to serve as their representative during an inspection.  Second, the regulation no longer suggests that non-employee third-party representatives should be limited to individuals with formal credentials, such as safety engineers or industrial hygienists.  Instead, a Compliance Safety and Health Officer (CSHO) may permit a non-employee third-party representative to join the inspection if the third-party representative will aid the CSHO in conducting “an effective and thorough physical inspection of the workplace” by virtue of their knowledge, skills, or experience.

The revised § 1903.8(c) states:

The representative(s) authorized by employees may be an employee of the employer or a third party. When the representative(s) authorized by employees is not an employee of the employer, they may accompany the Compliance Safety and Health Officer during the inspection if, in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).

History of OSHA’s Worker Walkaround Representative Policy

OSHA’s final rule largely reinstates an OSHA policy from 2013 which stated that non-employees could represent employee interests in enforcement-related matters.  This policy became known as the “Fairfax Memo.”  The Fairfax Memo further suggested that the OSH Act authorized a union or community organization representative to act on behalf of employees as a walkaround representative during a physical inspection so long as they had been authorized by the employees to serve as their representative. 

The 2013 policy was challenged in federal court by the National Federation of Independent Business (NFIB).¹  Before that lawsuit could be decided on its merits, the Trump administration formally rescinded the Fairfax Memo in 2017.  Thereafter, NFIB withdrew the lawsuit.

Business and Industry Concerns

OSHA published its final worker walkaround rule despite significant opposition from businesses and other industry groups.  OSHA received more than 11,500 comments in response to the proposed rule.  While not all of these comments opposed the walkaround rule, there have been several major concerns with this rule. 

• Determination of Good Cause and Reasonably Necessary:  While the rule vests the CSHO with the ultimate authority to determine whether the “good cause” and “reasonably necessary” requirements have been met to permit a non-employee third-party to join an inspection, the Agency has not provided guidance or a defined process for CSHOs to follow in making their determination other than referring to the factors already listed in the rule.

• Employer Objections:  The final rule does not provide employers with a mechanism to object to the selection of a non-employee third-party representative.  Instead, if an employer refuses to permit a non-employee third-party representative to join the inspection after a CSHO has determined that their participation is appropriate, the CSHO can follow the Agency’s procedures for obtaining a warrant to conduct the physical inspection.

• Multiple Employee Representatives:  This rule permits additional non-employee third-party representatives to accompany a CSHO during the inspection if the CSHO determines that the additional representative(s) will further aid the inspection.  This can include situations where the third-party non-employee representative is not affiliated with a union even though the inspection occurs at a unionized workplace.

• Personal Protective Equipment:  Businesses may be required to provide personal protective equipment (PPE) to non-employee third-party representatives during an inspection.  Where employers have policies requiring visitors to wear PPE on jobsites and have extra PPE available for visitors in accordance with their own policies, OSHA may consider an employer’s refusal to provide PPE to the third-party representative or any other attempt to apply their workplace policies against the representative in a discriminatory manner as interference with the inspection.

Steps Employers Can Take to Prepare

In anticipation of the rule’s May 31 effective date, employers should ensure they have written procedures in place that clearly instruct management on how to receive OSHA inspectors who wish to gain access to the jobsite. These procedures should also address how management should respond if a non-employee third party is designated as the employee representative during the inspection.  Employers with questions or concerns about OSHA’s new rule should contact their employment counsel.