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On April 1, 2024, the U.S. Occupational Safety and Health Administration ("OSHA") published its final rule significantly broadening the scope of the OSHA Act and its implementing regulation, 29 CFR § 1903.8, by expanding access to OSHA inspections to so-called non-employee third parties. The new rule is set to take effect on May 31, 2024 but not without first facing vigorous legal challenges from business groups. In fact, on May 21, 2024, the U.S. Chamber of Commerce, along with a coalition of other business interests, launched the first challenge to the new rule in a bid to block its implementation. Should the new rule survive, it would give unions unprecedented access to private worksites—even those that are not unionized.
Limitations of the Current Walkaround Rule
29 CFR § 1903.8 allows a representative of both an employer and employee to accompany an OSHA inspector during a physical “onsite” inspection of an employer’s worksite. In its current form, the regulation confines the term “employee representative” to current employees only, explicitly stating that “representative(s) authorized by employees shall be an employee(s) of the employer.” The regulation also specifically identifies two examples of individuals that may be considered “reasonably necessary” to accompany inspections—an industrial hygienist or a safety engineer.
Significant Changes under the New Rule
The new rule makes two primary changes to the existing regulation. First, employees may now either select another employee or a non-employee third party to serve as their “representative” during an inspection. Second, the regulation no longer suggests examples of individuals that would be “reasonably necessary” to join an inspection, such as safety engineers or industrial hygienists. Instead, a Compliance Safety and Health Officer (“CSHO”) may authorize any non-employee third-party representative to join the inspection if “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).”
Repercussions
Because the new rule does not offer any guidance to CSHOs on how to reach a determination of “reasonably necessary” by not providing any standards or specifics on what constitutes “relevant knowledge, skills, experience”, etc., the new rule appears to broadly open the door for seemingly anyone requested by an employee to join an OSHA inspection, including a union representative. Many unions have dedicated safety experts precisely for this reason. In fact, the preamble of the new rule explicitly states that OSHA will allow for “a wide variety of third parties,” including “those from unions or worker advocacy groups”, emboldening CSHOs to grant access to union representatives and community activists to accompany onsite inspections of private worksites.
California Employers
While the outcome of pending legal challenges remains to been seen, preparing for an environment where the new rule is upheld should still be on California employers’ radar. Even though California has its own state plan through Cal/OSHA, department staff have indicated that Cal/OSHA intends to adopt OSHA’s walkaround rule and its legal unit is currently working on drafting a similar framework. A further update is expected at the next Cal/OSHA Standards Board meeting in late June. Given that state plans are required to meet minimum federal requirements and must be “at least as effective” as OSHA, Cal/OSHA’s version will likely mirror the federal framework.
In preparation, employers should have written procedures in place delineating to management how to receive OSHA inspectors who wish to gain access to the jobsite. These procedures should be vetted by a workplace inspection expert to ensure that they are current and sound, including how management should respond in the event a non-employee third party is designated as the employee representative during the inspection.
Crucially, employers do still have options. If a third-party attempts to access their worksite, employers are within their rights to demand a search warrant or seek to quash any search warrant issued. Even once an inspection is underway, if the third party strays from the inspection, an employer can decline to permit the inspection to continue without a warrant.
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