Strangers on your shop floor: What you need to know about OSHA’s new walkaround rule

Supplemental materials for LEAP 2025 session OSHA Compliance: Employer Responsibilities for Workplace Safety

OSHA’s recently issued final rule on who may represent employees during safety and health inspections has employers worried. As a practical matter, the “walkaround rule”—which took effect May 31—means employers have little opportunity to object to third parties who employees choose to accompany OSHA inspectors as they check for unsafe working conditions or practices.

The rule lets employees designate someone to walk the workplace with inspectors—and that person doesn’t need to be an employee.

According to the rule, employee representatives could be anyone who, in the judgment of the OSHA inspector, is “reasonably necessary to aid in the inspection.” The rule says those third-party representatives “may be reasonably necessary because of their relevant knowledge, skills or experience with hazards or conditions in the workplace or similar workplaces.”

Employers fear that could literally open the door for union organizers or union-paid industrial hygienists to trail along behind inspectors, possibly influencing their findings or gathering information that could influence collective bargaining.

The walkaround rule provides that:

• An employee or group of employees may invite a representative to accompany the OHSA inspector. That representative does not have to be an employee, but can be a third-party outsider.
• OSHA inspectors can approve as an authorized representative any third party whom they deem reasonably necessary to conduct an effective and thorough inspection. The OSHA inspector can also turn down a request for a particular third-party representative.
• The third-party representative can, for example, be a safety expert or a union representative with relevant expertise. The representative can also be a translator if employees need assistance sharing their safety concerns with the OSHA inspector.

Fortunately, employers do have some say in the selection of third-party representatives. For example, they can object to outside employee representatives entering certain restricted areas if employers are concerned that trade secrets might be revealed or that classified materials might be exposed.

Employers can also prohibit third-party reps from taking photos and videos, making measurements, collecting samples and so forth. Employers can insist that the individual be adequately clothed in appropriate safety gear.

Perhaps most significantly, employers do not have to allow the third-party representative to discuss anything unrelated to the safety and health inspection—such as the benefits of belonging to a union.

Final note: Remember, the walkaround rule stipulates that the role of third-party employee representatives is to assist the OSHA inspector in doing their job, not to conduct their own independent inspection.

Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30. 

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