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OSHA’s New Worker Walk Around Representative Rule

On Behalf of | Jun 3, 2024 | Publications

On April 1, 2024, OSHA published in the Federal Register its final Worker Walk Around Representative designation process Rule. The final new rule amends 29 CFR 1903.8 regarding Representatives of Employees and Employers in an OSHA inspection. This new rule will become effective on May 31, 2024. A similar rule was proposed during the Obama administration but was rejected shortly after President Trump was elected.

By way of background, in 1993, the regulation governing participation in OSHA inspections by Employee Representatives was established in 29 CFR 1903.8(c), thereby granting employees and their representatives the right to accompany OSHA Compliance Officers during the walk around phase of an inspection. For years only employees of the employer were allowed to participate in the inspection. However, the new rule allows for non-employees to attend and participate in the OSHA inspection. This new rule was fast tracked and thereby short-circuited much of the rule making provisions in the Administrative Procedure Act. OSHA identified this rule as “not significant”, resulting in publication of this final rule in just seven months rather than several years in normal fashion.

The net effect of this new rule is that OSHA can authorize non-employee third parties to accompany OSHA’s Compliance Safety and Health Officer during inspections. This rule could make it easier for unions to gain access to non-union workplaces and utilize the OSHA inspection process as a basis for organizing campaigns. Further, Plaintiffs’ attorneys and their experts could be granted access to workplaces after employee injuries. Additionally, former disgruntled employees could perhaps be granted access to accompany the OSHA Compliance Officer and instigate division in the workplace.

Employers should be aware that a Walk Around Representative is only permitted to accompany the OSHA Compliance Officer during the walk around inspection and participate in the opening and closing conferences. The Walk Around Representative is not entitled to be present for private interviews of employees. Further, the Walk Around Representative may not take photographs and measurements unless expressly permitted by the employer. The Walk Around Representative may not interfere with a fair and orderly OSHA inspection. Therefore, the Walk Around Representative may not prevent the OSHA Compliance Officer from taking essential photographs or video recordings or perform monitoring studies.

With the advent of this new rule, we recommend that employers designate and train an OSHA inspection team to manage OSHA inspections. The inspection team should be trained on every facet of an OSHA inspection. The employer should be aware of its legal right to request a search warrant if deemed necessary. Additionally, and most importantly, employers should develop confidentiality and non-disclosure agreements that apply to all guests, including the non-employee third party Walk Around representatives. Trade secret areas within the workplace should be identified and protected. Finally, the most effective response to this Walk Around rule is to have a Safety Committee that includes non-supervisory employees which conducts regular meetings, takes minutes of the meetings, and participates in safety issues in the workplace.

This rule becomes effective May 31, 2024. We expect several legal challenges to the rule. If you have any questions or concerns, please contact a member of our Labor and Employment Section.

The Importance of Supervisors and Safety Policies

Employers and Safety Professionals often focus on the creation of written safety policies. Of course, having safety policies in writing, training on them, and enforcing them generally eliminates or at minimum mitigates the risk of problems in the future. The purpose of safety policies is to prevent workplace injuries, including deaths. Additionally, injuries at the workplace often create a financial hardship for the employer. Written policies inform workers on how their behavior impacts the work environment and the repercussions for failing to follow the procedures. It is important that workers know the expectations and have been trained on the safety policies. But who does the training and who enforces the policies? The Supervisor!

Supervisors are the key component in an effective safety and health program. No other employee has as much personal contact on a day-to-day basis with workers. The supervisor is the communicator of the employer’s policies and procedures. No one else models safety and health quite like the supervisor. The supervisor is the example from which workers draw their behavior. In other words, the supervisor is the role model for the employer’s policies from production to safety.

The supervisor performs a myriad of critical functions for the employer including the discipline of employees, preparing work schedules, training new employees, managing safety meetings, authorizing the maintenance and repairs of machines, investigates accidents, discusses problems with upper management, motivates employees, and prepares budgets. This list is not all inclusive. Is it any wonder that the success or failure of the safety and health program is dependent on the supervisor?

Employers should acknowledge the importance of the supervisors through appropriate and regular training. Supervisors should be held as accountable and rewarded as well for performance in safety matters as they are in production matters. Until then the value that the supervisor places on safety will always be less than the value placed on production. We recommend that employers use a separate evaluation form for each supervisor’s safety performance along with regular and effective training programs.

Please contact a member of our Labor and Employment Section with questions or concerns.

COMMUNICATION (Chemical Right – To – Know) STANDARD

On May 20, 2024, OSHA released a new Final Rule regarding the Hazard Communication (Chemical Right-to-Know) Standard. This Final Rule becomes effective July 20, 2024. The avowed purposes is to align the United States HazCom Standard with the United Nations Globally Harmonized System of Classification. This new rule places significant burdens by way of a new set of regulatory hurdles for chemical manufacturers, distributors, and downstream commercial users. We recommend that employers do the following to comply with this new Final Rule:

Designate a team that is knowledgeable about the chemicals the company manufactures, distributes or uses. Analyze your Hazard Communication program regarding potential amendments and updates.

Evaluate the chemicals and your program in light of compliance with the new and changed requirements. There may be a need for modification of chemical classifications, labels, Safety Data Sheets, and the written hazard communication program. Training and compliance dates for the new Final Rule must be addressed.

Please review the new Final Rule here https://www.osha.gov/hazcom/rulemaking and contact a member of our Labor and Employment section with questions or concerns.

OSHA’s Emphasis on Heat-Related Hazards

OSHA is focusing on reducing exposure to indoor and outdoor heat-related hazards that result in on-the-job illness, injury, and death. The National Emphasis Plan consists of targeted inspections, outreach, and compliance assistance. The NEP authorizes OSHA to conduct pre-planned inspections of high-risk worksites on “heat priority days” where the heat index—of “feel like” temperature—is expected to be 80 degrees Fahrenheit or higher.

The NEP creates a nationwide enforcement mechanism for OSHA to proactively inspect workplaces for heat-related hazards in construction operations alleging hazardous exposures to heat (outdoors and/or indoors). This means that OSHA can launch heat-related inspections on high-risk worksites before workers suffer preventable injuries, illnesses, or fatalities.

Over 400 workers died from job-related heat stress in the past ten years. That’s why OSHA initiated measures to protect workers from heat-related injuries to reduce heat exposure. The agency has developed a national emphasis program to prioritize inspections of exposure to heat-related hazards.

OSHA has tasked its Area Directors to institute the following:

prioritize inspections of heat-related complaints, referrals, and employee-reported illnesses and initiate an onsite investigation where possible;
instruct compliance safety and health officers to conduct interventions (i.e., providing heat posters, wallet cards, training) or opening inspections when they observe employees performing strenuous activities in hot conditions; and
expand the scope of other inspections to address heat-related hazards where worksite conditions or other evidence indicates present hazards. Click on the link below for more information.

Read the details of the National Emphasis Program on Heat-Related Hazards.