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OSHA Finalizes Updated Worker Walkaround Rule

During an OSHA workplace safety inspection, employees have the right to designate a representative of their choosing to accompany the OSHA inspector. This right is an extension of workers’ other rights under the OSH Act, such as the right to ask OSHA to inspect their workplace without fear of retaliation.

LHSFNA Management
David F. Rampone

In August of 2023, the Department of Labor proposed changes to clarify who could serve as workers’ representatives on these inspections, which we covered in this article. In late March, the DOL finalized that rule, which goes into effect on May 31, 2024.

“The right to representation is a crucial part of giving workers a voice during inspections. It’s also a cost-effective way to increase safety on the job,” says LHSFNA Management Co-Chairman David F. Rampone “This updated rule empowers workers to choose their own representative, levels the playing field and broadens the scope of who can be selected.”

Highlights of the Updated Walkaround Rule

  • The rule clarifies that workers can select a third-party, non-employee to represent them during an inspection if they choose. For example, workers could select a union steward or other union rep, even if they aren’t a certified safety professional such as an industrial hygienist.
  • The scope of who workers can designate is broad. A good worker representative will have knowledge, skills or experience with safety hazards relevant to that jobsite or similar workplaces or necessary language or communication skills.
  • The OSHA inspector must still approve the third-party designee, who should be “reasonably necessary to the conduct of an effective and thorough inspection.” Inspectors will ask for the employee representative during the opening conference, and may ask about their relevant experience, such as OSHA 10 or 30 hour training, at this time.
  • Having a worker representative present doesn’t reduce the importance of management’s role during the inspection process.

“The OSH Act gives employers and employees equal opportunity for choosing representation during the OSHA inspection process, and this rule returns us to the fair, balanced approach Congress intended,” said Doug Parker, Assistant Secretary for OSHA.

Common Questions & Answers About the Rule

OSHA released a lengthy FAQ guide for both workers and employers around the updated rule. Below are summaries of a few key questions that LIUNA District Councils, Local Unions, signatory contractors and other LIUNA affiliates may find particularly relevant.

What’s the process for designating a worker representative?

There’s no single or required process for choosing a representative. Employees can designate a representative when they file a complaint, when one is filed on their behalf, during the walkaround inspection or by contacting the OSHA Area Office. On jobsites with a recognized collecting bargaining agent, OSHA practice is to allow the highest-ranking union official or employee designee to participate in the inspection.

How many workers are required to authorize a walkaround representative?

There’s no set minimum number. More than one worker is needed, but it’s not necessary for all workers (or even a majority) to authorize a representative.

Can a walkaround representative ask questions or take photos during the inspection?

Generally, no. The role of the walkaround representative is to aid the inspection. They can ask clarifying questions related to items being discussed. If taking photos is permitted by the employer or allowed by a collective bargaining agreement, the representative may do so, as long as it doesn’t interfere with the inspection.

What type of walkaround representative behavior could interfere with the inspection?

During the inspection, walkaround representatives must limit their conversations with workers to matters related to the inspection and must not delay or impede the inspection. They are prohibited from taking part in any union organizing efforts, such as handing out union authorization cards, and prohibited from distributing any material without the OSHA inspector’s consent.

If you have additional questions about the updated worker walkaround rule, reach out to the Fund’s OSH Division through our Contact Us form.

[Nick Fox]

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