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VIEWPOINT
LORRAINE SEDLAK, CIH, CSP, FAIHA, is a senior EHS consultant at Bright Talent located in Tustin, California.
The opinions in this article are the author’s and do not necessarily reflect those of AIHA® or The Synergist®. When confronted with the issues discussed in this article, readers should consult legal counsel.
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OSHA’s Revised Walkaround Rule
BY LORRAINE SEDLAK
OSHA’s revised walkaround rule allows representatives of a third party, including non-employees without OEHS experience or training or other special/technical expertise, to participate in the inspection process. The rule, which went into effect on May 31, modifies 29 CFR 1903.8(c). This article reviews the text of the rule and information posted to OSHA’s website and recommends actions employers can consider in response to these changes.
AUTHORIZED REPRESENTATIVES
Prior to the revised rule, participation in work site inspections was limited primarily to employees at the site or—at union workplaces—a union representative. OSHA also allowed an industrial hygienist or safety professional to accompany the Compliance Safety and Health Officer if the CSHO determined that their participation was necessary to conduct an effective and thorough inspection. Typically, OSHA would use its own industrial hygienists or safety professionals for this purpose.
The revised rule defines authorized representatives as third parties who have “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills” that facilitate the gathering of information from employees. The employees’ options for third-party representation are not limited to people with formal credentials such as an industrial hygienist or safety professional and may include individuals from a union or community organization. OSHA does not address whether third-party representatives can include plaintiffs’ counsel or experts, nor does it provide a limit on the number of third parties. Previously, OSHA allowed one employee and one employer representative to accompany the CSHO on an inspection, but under the revised rule the CSHO may permit additional employer and employee representatives if they will further aid the inspection.
Holding third parties to the OSH Act’s requirements related to trade secrets is an acceptable practice and can be accomplished through confidentiality agreements.
A third-party representative may aid the inspection by explaining equipment, processes, operations, policies, and procedures, or by providing interpretation during an informal interview of employees. CSHOs are tasked with determining if a third-party employee representative is necessary and with vetting their qualifications, but there is no clearly defined vetting process for CSHOs to use. The revised rule grants CSHOs the authority to resolve all disputes regarding who is the representative of employees and who may accompany the CSHO on the walkaround inspection.
CONFIDENTIALITY
OSHA is required by the Occupational Safety and Health Act and federal laws to maintain the confidentiality of information the employer believes is confidential, proprietary, or a trade secret. This includes all information obtained during an inspection, although exceptions exist for the disclosure of information related to carrying out the act. Holding third parties to the act’s requirements related to trade secrets is an acceptable practice and can be accomplished through confidentiality agreements.
OSHA’s position is that employers may require walkaround representatives to sign a confidentiality agreement as long as the agreement is limited to information learned during inspections and contains the same terms required of other visitors. The agreement may not restrict the representative’s participation in any enforcement proceeding.
RECOMMENDATIONS
There is no formalized process for an employer to object to the participation of a third party. Employers who wish to object do not currently face noncooperation sanctions for requiring OSHA to secure a warrant allowing the third party to participate, but that position could change with time.
Given the challenges presented by the revised rule, OEHS professionals should ensure that company leaders are aware of these changes and gain consensus on how to manage the presence of third parties. Be proactive about providing training on these changes for the internal team who interfaces with OSHA. Review the information on OSHA’s website for a deeper understanding of the revised rule, and consult with legal counsel on how to address confidentiality, restricted access, trade secrets, and security requirements.
Continue to follow existing applicable regulations and your company’s OEHS policies and procedures for PPE requirements, respirator fit testing, visitor orientation, emergency evacuation procedures, and Homeland Security requirements for all third parties, including the CSHO. Ensure that the application of rules and policies is not applied in a discriminatory manner. Finally, update your existing regulatory inspection policies to reflect all changes.
RESOURCES
Federal Register: “Worker Walkaround Representative Designation Process” (April 2024).
OSHA: “Frequently Asked Questions: Worker Walkaround Designation Process (Walkaround) Rule.”