On April 1, 2024, OSHA published a “clarification/revision” on the question of who can accompany an employee during an OSHA inspection. The rule became effective May 1, 2024. 

What’s the rule change?

The key substance of this final rule is to amend the original language of the Occupational Safety and Health Act that states that an employee may request a third party to accompany them during an OSHA inspection, but that said person had to be a “current employee” of the organization being inspected (e.g., an industrial hygienist or safety engineer). There was an exception to that stipulation: it could instead be someone who, in the eyes of the Compliance Safety and Health Officer (CSHO), had expertise either in the field of work being inspected or specific expertise in the pertaining hazards. However, the new language eliminates the term “current employee” entirely, as well as the designation of either industrial hygienist or safety engineer. 

The language now states “representative(s) authorized by the employee may be an employee of the employer or a third party.” 

By eliminating the current employer stipulation and the industrial hygienist and safety engineer example, OSHA has broadened the pool of individuals an employee can select during an OSHA inspection.

Employers have long challenged the additional option of allowing an employee to select another for the walk-around inspection, citing safety concerns and revealing trade secrets. Demonstrating the far-reaching effect of this rule change, more than 11,000 comments were filed during the public comment period of the rulemaking. 

By expanding the language of the rule, it allows the employee’s designated representative during that inspection to include those with whom we may not have a working relationship. 

What does it do for workers?

My intent is not to judge whether this is wrong or right, but to let you know that change is coming for those that may have an upcoming inspection. The rule change gives wide latitude to the employee and the CSHO in the selection of the third party. 

OSHA states that this clarification/revision enables the CSHO and employee with this type of expertise to aid in the inspection. Remember, the majority of CSHOs do not have specific industry experience in the areas they are inspecting. That’s not a knock on their expertise—it’s just a fact that when you’re inspecting numerous industries throughout the country, the specificity of each person is limited to basic regulatory knowledge and application of the rules as written.

The bottom line is to provide a safe and secure workplace for our most valuable assets, our workers. 

By revising the rule, OSHA has given employees a clear option to select another individual to assist in the inspection. The question is, does another set of eyes help or hinder the process? 

I believe the rule puts a stronger burden on the CSHO to manage the process. The organization can work with the CSHO to ensure that the focus of the inspection remains on track and the third party doesn’t hinder the process unless asked to give their opinion based on expertise. 

In any case, whether there is a third-party representative or not, it is incumbent on the employer to ensure the focus of the inspection remains on the hazards being inspected and to seek amicable solutions that benefit all parties while ensuring safety and productivity targets are met. 

Complete details of this final rule can be found by searching for 29 CFR 1903 on www.osha.gov or www.federalregister.gov.

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