By Eric Conn, Mark Trapp, and Darius Rohani-Shukla
In early 2023, OSHA revealed plans for a rulemaking for a Worker Walkaround Representative Designation Process Rule that would amend existing regulation 29 CFR § 1903.8(c), which governs participation by third parties in OSHA inspections as employee representatives. The proposed rule changes three key components of that regulation:
- Changing the existing language that historically has generally limited employee representation during an OSHA inspection to individuals who are employees of the employer that is being inspected, to now allow non-employee third parties to act as employee representatives during OSHA inspections.
- Expanding the types of third parties permitted to represent employees during OSHA inspections. The existing regulation focuses on non-employees with a technical credential, “such as an industrial hygienist or a safety engineer” to accompany OSHA on an inspection when it “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace[.]” The new Proposal eliminates the limitation to these technical experts, and indicates that a third party representative may be “reasonably necessary” because of “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.”
- The proposed rule may also expand the role these third party representatives play during an OSHA inspection. The OSH Act and the existing regulation speak in terms of the representative “accompanying” OSHA during the walkaround phase of the inspection, but the proposed amended rule introduces the term “participate,” which could mean OSHA intends for these third parties to have a more active role; e.g., attending and asking questions during private employee interviews, reviewing the employer’s records produced to OSHA pursuant to OSHA’s broad subpoena authority, etc.