During a workplace safety inspection conducted by the Occupational Safety and Health Administration (OSHA), both the employer and employees may have representatives participate in the process. Historically, that included an employee representative (often affiliated with the union) and employer representatives, such as operations and safety managers.
OSHA recently amended its rule on walkaround representatives to allow a non-employee as an employee representative during an inspection if OSHA’s compliance officer determines “good cause” has been shown that it is “reasonably necessary.”
The rule, which takes effect on May 31, 2024, formalizes a 2013 OSHA policy that allowed union representatives to participate in non-union employers’ OSHA inspections if employees designated them. Many employers viewed this as a way for unions to expand into workplaces through the back door under the guise of safety.
The rule does not define when “good cause” has been shown that it is “reasonably necessary” for a non-employee to participate in an OSHA inspection, but it does list factors that the compliance officer should consider. These factors include the non-employee’s relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.
Any non-employee would be subject to both the compliance officer’s approval and the employer’s polices for all visitors, such as signing a confidentiality agreement, wearing personal protective equipment, and limiting entry into areas of the workplace containing trade secrets.
Employers should take steps to ensure they are ready for the changes. Employers that may be vulnerable to unionization efforts should consider what they can do to proactively address such concerns. Similarly, if there are communication issues for which an interpreter might be needed, consider addressing them internally.
Additionally, employers should review their policies and procedures related to visitors to ensure they are appropriate and updated and consider adding provisions about visitor authorization of photography and measurements, safety orientation, personal protective equipment, and emergency evacuation. If you have any questions, please email Employers Council.