Trial Lawyer Areyana Johnson
On May 31, 2024, the Occupational Safety and Health Administration (“OSHA”) Final Walkaround Rule went into effect. Initially published on April 1, 2024, the new rule amends 29 C.F.R. 1903.8(c). This rule sets forth the guidelines on who is permitted to be present for an OSHA inspection.
What is 29 C.F.R. 1903.8(c)?
29 C.F.R. 1903.8(c) is an OSHA regulation which protects an employee’s right to select and authorize a representative to accompany the OSHA Compliance Officer conducting an inspection of the employee’s workplace. Previously, an employee was limited in selection of a representative. Specifically, an employee could only designate an employee of the employer as the representative or a third party deemed “reasonably necessary”. A reasonably necessary third party is an individual who possesses credentials and expertise in the health and safety sector.
Well, those limitations are no longer in effect. An employee is no longer limited to a third party who is deemed reasonably necessary. In other words, an employee may authorize a representative who is a third party not in possession of formal credentials. The only caveat to this is where a representative who is not an employee of the employer nor a reasonably necessary third party, an OSHA Compliance Officer retains discretion to determine the validity of the third party’s presence. Good cause of the third party’s presence is required to effectuate an efficient and effective inspection of the employee’s workplace. So, while the employee is somewhat free to pick an individual to accompany the OSHA Compliance Officer on the inspection, the compliance officer has the final say on whether the presence surpasses muster.
How Will the OSHA Compliance Officer Determine Good Cause for a Non-Reasonably Necessary Third Party?
The OSHA Compliance Officer may pose a series of questions to the third party. These questions will pertain to the third party’s knowledge, skills, or experience in dealing with hazardous materials or conditions in the workplace, similarly situated workplaces, or relevant communication skills when assessing the effectiveness and efficiency of the third party’s presence. So, while the amended rule virtually covers any individual to be selected for the inspection, it is a best practice for an employee to select an individual who satisfies at least one of the criteria above-mentioned to withstand the potential limiting discretion of an OSHA Compliance Officer.
What If My Employer Refuses to Permit My Representative Access to the Workplace?
It appears there are only a few instances where an employer can ultimately prevent a representative from accessing the workplace. An employer may still limit entry of employee authorized representatives where the protection of trade secrets is threatened. Additionally, employers may attempt to thwart access to a third party, but this is not permanent. If you find yourself in a situation where the employer is preventing access by a third party, an avenue of relief is to seek a warrant before conducting the inspection. This is a tool utilized by OSHA. It is important to note that even after the warrant is obtained, the OSHA Compliance Officer may still order the third-party representative to abide by the employer’s policies and procedures similar to an employee of the employer.
In sum, the Final Walkaround Rule is broader than its predecessor. The amended rule has several practical implications. Employees are now permitted to designate almost any individual to be present for the OSHA workplace inspection even where the representative possesses zero relevant experience or knowledge about the workplace. Currently employees are also not regulated as to when or how they may authorize their inspection representatives. Ultimately, where a representative is a third party, the OSHA Compliance Officer has the discretion to determine whether the third party is reasonably necessary to conduct an effective and efficient walkthrough inspection.
For more information on the OSHA Final Walkaround Rule, please see here.
Areyana Johnson is an Employment Law Trial Attorney located in the Houston office of Wiley Wheeler, P.C. For more info on Ms. Johnson, see more details here.