A yearslong saga seems to be coming to an end now that the Office of Information and Regulatory Affairs (OIRA) has completed its review of the Occupational Safety and Health Administration’s (OSHA) “walkaround rule,” 29 C.F.R. 1903.8(c).

The OIRA website was updated to indicate that the review was completed on March 21, 2024. Finalization of the rule is imminent and the rule will go into effect thirty days after it is published.

Quick Hits

• OSHA’s “walkaround rule” has been approved by OIRA for finalization.
• The rule allows third parties, potentially not connected with the workplace, to accompany a CSHO during the inspection process/facility walkaround, if the CSHO considers such parties “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”
• The rule will take effect thirty days after its publication in the Federal Register.

The rule (more accurately a rule change) is intended to accomplish the following purpose, according to OSHA:

This rulemaking will clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer, if in the judgment of the Compliance Safety and Health Officer such person is reasonably necessary to an effective and thorough physical inspection.

The modification of the rule is subtle, yet it will have substantial impact. It will allow all manner of third parties, whether employed by the employer subject to the inspection or not, to participate in the inspection if the compliance safety and health officer (CSHO) thinks good cause is shown as to why their participation is reasonably necessary. The change includes the addition of just eleven words:

(c) 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 their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (e.g., because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills). (Emphasis added.)

This modification will likely complicate future OSHA inspections by allowing third parties, potentially not connected with the workplace, to be part of the inspection process and by introducing contentiousness related to a CSHO’s decision to permit Third Party A to participate while excluding Third Party B. Nonemployees allowed to enter the workplace and access information otherwise not available and to develop relationships could facilitate organizing campaigns, political activity, and litigation. The rule also raises the question of whether OSHA would consider it reasonably necessary that these third parties be permitted to participate in OSHA’s private interviews with employees and have access to the management interviews. This potential increase in access to information would not only impact campaigning, litigation, and potentially adverse political activity, but (as history has shown) it would also have a direct impact on the number of OSHA complaints raised in a workplace.

In anticipation of the implementation of this rule, employers may want to evaluate whether their protocols and procedures for dealing with an OSHA inspection are current and sound. Employers might also consider what they will do in the event a third party accompanies a CSHO for the purposes of an inspection and whether there is merit in compelling the CSHO to secure a warrant before entry is allowed, if there are questions about the legitimacy of that third party’s participation. Similarly, employers may want to prepare for an uptick in organizing activity after an OSHA inspection where a third party was present.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will publish updates on the Workplace Safety and Health blog as additional information becomes available.