OSHA Beefs Up Workplace Inspections

Author: Michael Cardman, HR & Compliance Center Senior Legal Editor

March 29, 2024

In an effort to promote workers' involvement in its workplace inspections, the Occupational Safety and Health Administration (OSHA) will soon allow employees to designate third parties - including union representatives or community organizers - to accompany the agency during its inspections.

The Occupational Safety and Health Act (OSH Act) gives both employers and employees the right to designate a representative to accompany OSHA compliance officers during physical inspections of a workplace (sometimes known as "walkarounds").

OSHA has long interpreted one of its own regulations as allowing third-party representatives authorized by employees to accompany the agency on its walkaround inspections when it is "reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace." However, in 2017, a federal district court held the regulation generally requires that employee representatives be employees themselves.

As a result, OSHA is updating its regulation, effective May 31, 2024, to explicitly clarify that the representatives authorized by employees may be an employee of the employer or a third party.

OSHA's updated regulation also will clarify that third-party representatives may be necessary by virtue of their "relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills." This way, employees' options for third-party representation during OSHA inspections will no longer be limited to only those individuals with skills and knowledge similar to that of the two examples provided in existing regulation: Industrial Hygienist or Safety Engineer.

Worker advocates applaud the new regulation, saying that a trusted intermediary can help OSHA inspectors uncover workplace hazards. "That's because workers who labor under the most dangerous conditions also face the greatest barriers to, and risks from, speaking to OSHA about work practices and hazards," the National Council for Occupational Safety and Health said in a comment.

Opponents said the rule interferes in labor-management relations, increases costs and overturns longstanding regulations. The Biden administration "should stop putting its political goal of promoting unionization at all costs ahead of keeping workers safe," House Education and the Workforce Committee Chair Rep. Virginia Foxx, R-N.C., said in a statement.