OSHA revises inspection walk-around provisions

Safety-workers-1 The Occupational Safety and Health Administration (OSHA) is authorized to inspect regulated workplaces, although it generally inspects only workplaces deemed highly hazardous (which typically are targeted sector-wide by OSHA National Emphasis Programs (NEPs) or their regional or state equivalents), or those subject response to complaints or reported incidents of injury or illness (I&I). On April 1, OSHA revised provisions in its inspection standard (29 CFR 1903) clarifying which “employee representatives” can accompany an inspector during a walk-around; the revisions are to become effective on May 31. This revision reflects part of broader inspection revisions proposed on August 30, 2023 (which I wrote about HERE). The rest of this note discusses the change to walk-around provisions.

How does OSHA inspect?

OSHA’s compliance safety and health officers (CSHOs) have broad authority to enter workplaces to evaluate compliance with any provision of the Occupational Safety and Health Act of 1970 (OSH Act) and OSHA regulations. Inspections generally are unannounced. Arriving inspectors are to state the reason and target of the inspection, but are empowered “within reason” to go anywhere on a worksite and speak with any employer, agent or employee, and then follow up if they encounter any additional hazards or potential hazards. Employers are not to bar or interfere with inspections (trade secret claims can be made). Inspectors must allow representatives of the employer and of employees to accompany the inspection, with the idea that these additional personnel can facilitate and/or enhance the inspector’s work – these are the provisions OSHA has just revised.

What changes has OSHA adopted?

Under OSHA’s existing rule (29 CFR 1903.8), inspectors generally defer to the employer’s nomination of an employer representative to accompany an inspection, but defers to employees’ nomination of an employee representative only if that nominee is an employee of the employer. CSHOs are to make their own determination of ‘good cause” for use of a non-employee. However, OSHA has now adopted two revisions, clarifying conditions for an “employee representative” who is not an employee of the employer under inspection to accompany an inspector. These proposed revisions are:

Rephrase from “shall be an employee(s) of the employer” to instead say “may be an employee of the employer or a third party."
Continues to allow a non-employee to accompany the CSHO, when found appropriate "in the judgment of the [CSHO]." However, rephrases the basis for this judgment from “accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace” to “good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).”

OSHA explains that these changes are intended to:

preserve the presumption that only the employer’s employee(s) accompany a CSHO
clarify that the situations where the CSHO may approve a non-employee are not only based on the non-employee’s formal expertise (which was sometimes argued base on the parenthetical example in the section “(such as an industrial hygienist or a safety engineer)” to allow this choice based on formal expertise, experience and skills, and/or language or communication skills.

The changes will allow individuals with relevant work experience with or without formal professional standing, and will also allow people who can translate between the CSHO and workers with limited or no English language skills.

What happens next?

This revision become effective on May 31, 2024. Once in force, the change is intended to expand the situations where an inspector can allow a third party with relevant working or language expertise to accompany an inspection during walk-around. It is intended to cover situations in which unionized third parties accompany an inspection, which some employers have objected to.

Self-evaluation checklist

Does the organization have internal policies and procedures to be employed during an OSHA inspection?
If so, to these policies and procedures address the eligibility of “employee representatives” who might be identified to accompany an OSHA inspection?
If so, will the organization need to revise these policies and procedures to conform to OSHA’s revision of provisions covering third party accompaniment of inspectors?

Where can I go for more information?

About the Author

jon_f_elliott Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: tei@ix.netcom.com

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