OSHA Announces Final Worker Walkaround Rule

By Joseph Richardson and Samuel H. Datlof

The Occupational Safety and Health Administration (OSHA) is the federal agency authorized to physically inspect worksites for hazards that put workers at risk. On April 1, 2024, OSHA announced the final version of its Worker Walkaround Rule, which outlines the rights of employees to authorize representatives to participate in OSHA’s inspections of the employees’ worksites.

The rule states that employees may either designate a fellow employee as their representative to accompany the OSHA inspector, or they may designate an outside third-party representative if the OSHA inspector believes that person “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace” based on a range of considerations, including expertise in occupational health and safety or relevant language or communication skills.

For many years, OSHA had permitted third parties designated by employees to participate in worksite inspections. And in 2013, OSHA issued a letter of interpretation confirming that persons affiliated with unions or community organizations could serve as such a representative—even in the absence of a collective bargaining relationship between the union and the employer.

Three years later, business interests brought suit against OSHA, asserting that the letter was unlawfully promulgated because it had not gone through the notice-and-comment process, and that it was inconsistent with the Occupational Safety and Health Act. A federal district court judge in Texas agreed that the letter was unlawfully promulgated, so OSHA withdrew the letter.

OSHA responded to the court’s decision by issuing the new guidance as a regulation, not as a letter, and by clarifying two substantive issues: (1) Employees may designate representatives with a wide range of qualifications, as long as those qualifications are “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace”; and (2) the OSHA inspector maintains the authority to permit or deny the third party’s participation. The new rule does not specifically limit the participation of unions, community organizations, or any other group.

The final rule marks a significant improvement for workers in potentially hazardous worksites. Third parties can play an essential role in the inspection process by providing technical expertise or experience in the industry, reliable interpretation services (so that workers can converse with the OSHA inspector without employer interference), cultural competency that fosters employee trust in the process and thus a willingness to share information with the agency, and more.

For example, a labor organization that submitted comments to OSHA in support of the new rule explained that in one OSHA inspection, immigrant workers selected a faith leader from their community to serve as their representative during the inspection—the faith leader “helped the workers overcome their fear of speaking to the [inspector] by drawing upon a prior relationship with the workers and by interpreting for them.”

As labor and employment attorneys that represent working people, Willig, Williams & Davidson applauds OSHA’s finalized rule. While we expect the rule to face legal challenges that may delay its implementation (currently scheduled for May 31, 2024), we are ready to assist our clients in incorporating the Worker Walkaround Rule into their organizing and representational activities.