OSHA’s new walkaround rule a reminder for employers to check procedures

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The Occupational Safety and Health Administration‘s “Walkaround Rule,” which allows employee representatives to go with inspectors on job sites went live on May 31. In turn, employers are assessing how they can protect their trade secrets and allow third parties who meet their standards.

Officially named the Worker Walkaround Representative Designation Process, the final rule will allow third parties to join the walkaround “because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplace, or language communication skills,” designated by employees and determined by an OSHA inspector.

Previously, OSHA’s rule said employee representatives should be an actual employee of a company under inspection. One exception was for a non-employee “third party” to join if an inspector deemed having them was necessary for a thorough inspection, for example a safety engineer of industrial hygienist.

The new walkaround rule changes that by removing the requirement for third parties to be an employee of the organization. The change is significant because it opens the possibility for labor union representatives or other parties to have access to an employer’s worksite, which has already spurred lawsuits in other parts of the U.S.

Employers want to protect confidential processes under new walkaround rule

A “wide universe” is created under the new rule as new possible parties are allowed on job sites and as contractors scramble to keep their confidentiality and trade secrets intact, said Erik Eisenmann, a labor and employment attorney at Husch Blackwell.

OSHA ultimately determines who joins them in walkarounds, but there is some room for employers to push back and create standards for third party inspections, Eisenmann said.

Eisenmann said his usual advice to employers was to allow OSHA to carry out their investigation within a reasonable framework. However, if push comes to shove, an employer can refuse the inspection and make the agency fetch a subpoena – which it has a high success rate doing so.

An employer could also require a third party to sign a non-disclosure agreement or confidentiality requirement, he added. If a company doesn’t have precedent treating other third parties this way, it’s unlikely they can start the first time during an investigation.

“This new rule is an opportunity for a business to evaluate what its hygiene is in this space,” Eisenmann said. “Are we having visitors follow rules or sign acknowledgements before they enter a worksite, if that’s important to us.”

The agreement might not restrict the representative from discussing information with OSHA or employees affected by the inspection, or stop them from participating in future enforcement processes, according to OSHA’s FAQs.

Another strategy is to have a process in place for handling OSHA inspections, Eisenmann added. A designated representative could meet the inspector in a meeting room or another space about the investigation and where they will be looking, he added.

“That’s a best practice regardless of this rule. We want to be able to control the path the investigator may travel, and parts of work site visited during investigation,” Eisenmann said.

Third parties need to have permission to take photos or videos during inspection, according to OSHA. They aren’t allowed to stop inspectors from carrying private interviews or take their own photos, talk to employees about unrelated topics or wander into unauthorized areas.

If a third party does interfere with a walkaround, the OSHA inspector can end their participation or suspend inspection with permission from the Area Director, OSHA’s FAQs showed.

In late May, the U.S. Chamber of Commerce filed a lawsuit in the Western District of Texas against OSHA’s walkaround rule. The chamber and a coalition of business groups alleged the rule gave union organizers, activists, plaintiffs’ attorneys and competitors access to workplaces.