Interim Guidance for Worker Walkaround Representative Designation Process | Occupational Safety and Health Administration

May 10, 2024

MEMORANDUM FOR:: REGIONAL ADMINISTRATORS
STATE PLAN DESIGNEES
FROM:: AMANDA EDENS
Deputy Assistant Secretary, OSHA

SCOTT C. KETCHAM
Acting Director, Directorate of Enforcement Programs

TIMOTHY S. IRVING
Acting Director, Directorate of Construction
SUBJECT:: Interim Guidance for Worker Walkaround Representative Designation Process

This memorandum describes interim guidance for implementing the Worker Walkaround Representative Designation Process final rule ("Walkaround rule"), which was published on April 1, 2024, and will become effective on May 31, 2024. See 89 FR 22558 (Apr. 1, 2024). To ensure consistency in ensuring application of the Walkaround rule, compliance safety and health officers (CSHOs) shall use the following guidance until OSHA Instruction, CPL-02-00-164, Field Operations Manual (FOM), April 14, 2020, is updated accordingly. In determining whether employees have an authorized employee representative, the CSHO shall apply the procedures outlined below and document their findings in the casefile in accordance with established practices and procedures.

Section 8(e) of the OSH Act provides that, "[s]ubject to the Secretary's regulations, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace ... for the purpose of aiding such inspection." 29 U.S.C. § 657(e). The Walkaround rule revised one of section 8(e)'s implementing regulations, 29 C.F.R. § 1903.8(c), to clarify that the authorized employee representative may be an employee of the employer or a third party. A third-party employee representative may accompany the CSHO during the walkaround inspection when the CSHO determines that good cause has been shown why the third-party representative is reasonably necessary to the conduct of an effective and thorough physical inspection. A third party may be reasonably necessary because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills knowledge, among other reasons.¹

A third-party employee representative is "reasonably necessary" when they make a positive contribution to a thorough and effective inspection. See 89 FR at 22575. A third-party representative can make a positive contribution to OSHA's inspection, such that they are considered reasonably necessary, for a variety of reasons, including, but not limited to, because they possess relevant:

knowledge, skills, or experience with hazards or conditions in the workplace being inspected;
knowledge, skills, or experience with hazards or conditions in similar workplaces; or
language or communication skills that can facilitate better communication between workers and the CSHO.

For instance, a third-party representative may be reasonably necessary based on their familiarity with machinery, work processes, or hazards that are present at the worksite or similar workplaces, or because they possess specialized safety and health expertise. A third party may also be "reasonably necessary" to an inspection if they can provide interpretation skills for employees with limited English proficiency or if they can facilitate communication through their cultural competence and prior trusted relationships with workers.

Determination of Representative Authorized by Employees

CSHOs shall determine as soon as possible after arrival whether the workers at the inspected worksite are represented and, if so, shall ensure that employee representatives are afforded the opportunity to participate in all phases of the inspection. See FOM Chapter 3, Section IV.D.1 - Employee Participation. Beginning May 31, 2024, the following guidance shall supersede Chapter 3, Section VII.A.1-2 until the FOM is updated:

Employees Represented by a Certified or Recognized Bargaining Agent. During the opening conference, the highest ranking official or union employee representative on-site shall designate who will participate in the walkaround. Section 1903.8(b) gives the CSHO the authority to resolve all disputes about the representative authorized by the employer and employees.
Safety Committee or Employees at Large. Employee members of an established safety committee or employees at large can designate the employee walkaround representative for OSHA purposes.
Third-party Representatives (non-employee representatives). Employees may designate a third party to be their authorized representative. 29 CFR 1903.8(c). CSHOs may ascertain whether the employee representative is a third party by reviewing the complaint, asking the employer, and asking employees during the inspection or interviews.
1. For all inspections where the authorized employee representative is a third party, the CSHO shall inquire about how the representative will aid the inspection. An employee representative who is a third party may accompany the CSHO during the physical inspection of the workplace only when, in the judgment of the CSHO, good cause has been shown why the third party is reasonably necessary to an effective and thorough physical inspection. 29 CFR 1903.8(c).
2. In determining whether good cause has been shown why the third party is reasonably necessary to an effective and thorough physical inspection, the CSHO may consider a variety of factors, including any relevant knowledge, skills, and experience of the representative, including whether they have relevant language or communication skills that would facilitate communication with workers. The knowledge, skills, and experience of the third party may be considered relevant if it pertains to the worksite being inspected or if they pertain to similar workplaces.
3. CSHOs shall note in the casefile the basis for determining whether good cause has been shown why a third-party representative is reasonably necessary to an effective and thorough physical inspection of the workplace.
4. CSHOs should not request documentation from the third party to validate the representative's credentials, qualifications, or skills, unless there is a dispute or objection from the employer concerning the third party's right to accompany the CSHO during the inspection. However, documentation provided voluntarily by a third-party employee representative demonstrating relevant knowledge, skills, or experience of the representative for purposes of aiding the inspection shall be retained in the casefile consistent with established policies, procedures, and the FOM.
Where employees are not represented by an authorized representative, there is no established safety committee, or employees have not chosen or agreed to an employee representative for OSHA inspection purposes (regardless of the existence of a safety committee), CSHOs shall determine if other employees would suitably represent the interests of employees on the walkaround. If selection of such an employee is impractical, CSHOs shall conduct interviews with reasonable number of employees during the walkaround.

Denials and Interference/Disruption

The Walkaround rule does not alter any of the other inspection-related provisions contained in 29 CFR part 1903, such as the CSHO's authority to deny the right of accompaniment to any individual whose conduct interferes with a fair and orderly inspection (§ 1903.8(d)), the requirement that the conduct of inspections preclude unreasonable disruption of the operations of the employer's establishment (§ 1903.7(d)), or the employer's right to limit entry of employee authorized representatives into areas of the workplace that contain trade secrets (§ 1903.9(d)). The CSHO also retains authority to resolve all disputes as to who is the representative authorized by the employer and employees for purposes of the walkaround inspection (§ 1903.8(b)). The CSHO will seek to resolve any employee or employer objections or disputes concerning an authorized representative consistent with OSHA's FOM, CPL 02-00-164, Chapter 3.

If an employer refuses or interferes with participation by an employee representative during an inspection, and the CSHO is unable to resolve the situation, it shall be considered as a refusal to permit the inspection and the Area Director or designee shall be contacted (see FOM, CPL 02-00-164, Chapter 3, Section IV.D.2). The Area Director or designee shall take appropriate actions to resolve the disagreement. If the employer's objection or refusal persists, the Area Director or designee shall consult with the Regional SOL to determine if an inspection warrant is needed (see FOM, CPL 02-00-164, Chapter 3, Section IV.C.1.c & Chapter 15, Section III.1). In cases where an inspection warrant is requested, the Regional Offices will inform the respective Directorate, Construction or Enforcement Programs of their actions.

CSHOs shall also advise the employee representative that, during the inspection, matters unrelated to the inspection shall not be discussed with employees (see FOM, CPL 02-00-164, Chapter 3, Section V.E). If the employee representative engages in disruption or interference, the CSHO will promptly attempt to resolve the situation. The CSHO shall use professional judgment in determining whether, in view of the severity and nature of the representative's behavior, a warning would suffice or if terminating the representative's right of accompaniment is warranted. Prior to terminating any representative's right of accompaniment, the CSHO shall contact the Area Director or designee and discuss whether to suspend the walkaround inspection or take other action (see FOM, CPL 02-00-164, Chapter 3, Section V.E).

Field staff should review and familiarize themselves with the FAQs for the Worker Walkaround Designation Process (Walkaround) Rule, as well as the Preamble prior to the effective date of this rule in anticipation and preparation of questions by employers and employees during enforcement inspections and outreach.

Please contact Kelly Knighton or Garvin Branch in the Directorate of Construction and Prentice Cline in the Directorate of Enforcement Programs for questions related to this memorandum.

¹ 29 C.F.R. § 1903.8(c) now provides:

The representative(s) authorized by employees may be an employee of the employer or a third party. When the representative(s) authorized by employees is not an employee of the employer, they may accompany the Compliance Safety and Health Officer during the inspection if, in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).