How the Updated OSHA Walkaround Rule Impacts Your Business

You may have heard about the new OSHA walkaround rule that took effect on 31 May 2024. As we know them, “walkarounds,” or OSHA worksite inspections, have been around for decades. Starting in the spring of 2024, they’ll be changing. 

Since the Occupational Health and Safety Act was passed in 1970, the Act has required that both (1) an employer’s representative and (2) a representative authorized by the employees shall be permitted to accompany OSHA during a workplace “walkaround,” or OSHA inspection. The new OSHA walkaround rule refines this requirement. 

In this article, we’ll break down what the new OSHA walkaround rule means for your organization. We’ll also show you where to turn if you have further questions about how the new OSHA walkaround rule—or any OSHA requirement—uniquely applies to your business. 

What Is the New OSHA Walkaround Rule? 

OSHA (the Occupational Safety and Health Administration, which is a division of the United States Department of Labor), published a new final in the Federal Register on 1 April 2024. Broadly, the new rule means that employers will need to prepare for changes to the way walkarounds happen at their worksites. 

According to the text of the rule, OSHA has clarified that: 

“[T]he representative(s) authorized by employees may be an employee of the employer or a third party; such third-party employee representative(s) may accompany the OSHA Compliance Safety and Health Officer (CSHO) when, in the judgment of the CSHO, good cause has been shown why they are reasonably necessary to aid in the inspection.” 

While that snippet makes up part of the official wording of the final rule, it’s a bit vague on what the rule means for employers.

Let’s break down what this rule actually says in plain English. Here are the key points to know: 

1.  The pool of who can serve as a third-party employee representative just widened

The new OSHA walkaround rule widens the scope of who is permitted to serve as the “representative(s) authorized by employees.” OSHA regulations have in the past required the employee representative to themselves be an employee of the company whose worksite was being inspected. In the text of the regulations, an exception was made that an employee representative could be a third party who was not an employee of the company, so long as “good cause” could be shown as to why the third party was “reasonably necessary” for the inspection to occur. 

The text of the regulation creating this exception outlined two (and only two) examples of third parties who might fit this definition: industrial hygienists and safety engineers. 

Despite this language, the question of whether third parties who were not employed by the company undergoing the walkaround inspection has long been a question up for debate. In fact, a district court in 2017 decided that non-employees, no matter who were not permitted to serve as employee representatives. 

The new OSHA walkaround rule effectively “overturns” that district court ruling, making clear that an employee representative doesn’t necessarily have to be an employee of the company in question. It also clarifies that the employee representative chosen by employees doesn’t need to be limited to a safety engineer or industrial hygienist. The representative could be just about anyone—so long as they have knowledge or skills that could actually aid in a walkaround inspection. 

RELATED: OSHA Raises Penalties to Keep Pace with Inflation >> 

2.  The rule is a win for employee and union advocates

We just discussed OSHA’s clarification that, in order to serve as an employee representative, a third party must be “reasonably necessary” to aid in the function of a walkaround inspection. 

But when exactly is a third party “reasonably necessary” to aid in the walkaround inspection? The Final Rule has a direct answer. The text specifies that a third party may be “reasonably necessary” based on their: 

• Relevant knowledge, 
• Skills, 
• Experience with hazards in the workplace or similar workplaces, 
• Experiences with the conditions of the workplace or similar workplaces, 
• Language skills, or 
• Communication skills. 

Essentially, employee representatives no longer need to have a particular skillset relevant to health or safety in order to attend an inspection; rather, they might bring communication or language skills to the table. For example, if a workforce is predominantly Spanish-speaking, a bilingual third-party employee representative (with no health or safety skills) could potentially be put forth by employees. 

Employee advocate groups are fans of the new OSHA walkaround rule, as the rule could potentially strengthen the ability of employees to pass their concerns along to the CSHO conducting the inspection. For example, many believe the new rule also has the potential to allow union leaders to serve as employee representatives, even in non-union workplaces. 

RELATED: What to Expect When OSHA is Inspecting >> 

3.  The CSHO still decides who can aid in an inspection and who must sit out

Despite the significance of the new changes, some things about OSHA walkaround requirements are staying exactly the same. For example, the new OSHA walkaround rule doesn’t change the fact that the CSHO conducting the inspection gets to make the final call as to whether a third-party employee representative is fit to attend an inspection at all. 

Further, CSHOs still retain the power to deny an employee representative the right to attend an inspection if their behavior disrupts a fair and orderly inspection. What’s more, employers are still free to deny third parties the right to enter areas of the worksite that contain the employer’s trade secrets to the same extent that they were before the passage of the new OSHA walkaround rule. 

What Employers Should Do to Prepare for the New OSHA Walkaround Rule

Given the broadened pool of individuals that may be permitted by OSHA to serve as third-party employee representatives, employers need to make a few adjustments. In particular, employers should be prepared to make reasonable challenges if they disagree with the employee representative put forth by their employees.

Companies should ask the following of their assigned CSHO:

• What are the particular reasons that this third-party representative was put forth by our employees? 
  
  
• What skills or knowledge does this third-party representative have that are relevant to the walkaround inspection? 
  
  
• Did our employees designate this third-party representative themselves? 

RELATED: Unlocking Compliance: Mastering OSHA Safety Training Requirements >> 

Axcet HR Solutions: Your Dedicated OSHA Compliance Experts 

Do you have questions about your organization’s OSHA compliance, readiness for a walkaround inspection, or safety risks? Meet Axcet HR Solutions. We’re your partner in workplace safety, risk management, workers’ compensation claims management, HR compliance, and a full suite of HR tasks and responsibilities. 

Axcet HR is already ready to assist you. Schedule a quick consultation with our workplace safety experts today. We’re excited to help you stay compliant and keep your employees safe—so you can get back to your core business.