Navigating the New OSHA Walkaround Rule

With the Occupational Safety and Health Administration's (OSHA) "walkaround rule" soon taking effect, employers must be prepared for the arrival of an OSHA inspector. Starting May 31, 2024, unless a court blocks the rule's enforcement, employers will need to comply with new requirements that could significantly impact their operations.

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Understanding the Walkaround Rule and Union Organizers

The new rule empowers OSHA inspectors to include union representatives, community activists, or other third parties during onsite inspections if deemed necessary. This provision, as noted by Heather MacDougall of Morgan Lewis in Miami, applies even to non-unionized worksites. Employers should anticipate that organized labor might leverage this rule creatively to access previously restricted sites.

David Smith from Constangy, Brooks, Smith & Prophete in Atlanta warns that union organizers accompanying inspectors might use this opportunity to ask clarifying questions that could cast employers in a negative light. These questions, while not disruptive, can later support unionization efforts.

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Limiting Representatives and Managing Disruptions

OSHA regulations limit the number of representatives accompanying an inspector to one unless multiple representatives aid the inspection or different phases require different expertise. However, as Micah Dickie of Fisher Phillips in Atlanta highlights, inspections must avoid unreasonable disruptions.

Employers should be ready to articulate to inspectors why multiple nonemployee representatives might hinder the inspection, citing factors like overlapping skill sets, competing organizations, space restrictions, and limited personal protective equipment (PPE) availability.

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Ensuring Safety and Managing Liability

Safety is paramount when third parties join an OSHA inspection. According to John Ho of Cozen O’Connor in New York City, these individuals must adhere to all safety protocols, including wearing appropriate PPE. To mitigate liability risks, employers should require non-employee representatives to sign liability waivers, protecting against potential negligence claims.

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Protecting Confidential Information

Confidentiality is another crucial concern. Employers can request that areas containing trade secrets be restricted during inspections. However, as Heather MacDougall points out, this might lead to disputes over what qualifies as a trade secret. To safeguard sensitive information, employers should consider requiring third parties to sign nondisclosure agreements.

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Asserting Property Rights

Employers should assert their Fourth Amendment rights, which protect against unreasonable searches. As Michael Rubin from Ogletree Deakins advises, a clear statement during the opening conference can clarify the need for a warrant or consent for the inspection to proceed. This approach allows employers to negotiate the inspection's scope and participants.

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Developing Inspection Procedures

Preparedness is key. Ashley Meredith Strittmatter from Baker Donelson in Knoxville emphasizes the importance of having clear procedures for handling OSHA inspections. This includes:

1. Designating a Point Person: Assign someone to meet and accompany the OSHA inspector and any third-party representatives.
2. Managing Disruptions: Ensure the inspection does not unreasonably disrupt operations.
3. Controlling the Narrative: Request that inspectors remind third-party representatives to focus solely on the inspection-related matters and not engage in unrelated discussions with employees.

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Preventing Interference with the Inspection

Employers must monitor the activities of third-party representatives to prevent interference. Examples of interference include:

• Preventing private employee interviews.
• Entering unauthorized areas.
• Taking unauthorized photos or videos.
• Engaging in union solicitation, such as distributing union authorization cards.
• Violating inspection ground rules.

Disruptive behavior can result in suspension of the inspection or denial of further accompaniment by the third-party representative.

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Conclusion

Navigating an OSHA inspection, especially under the new walkaround rule, requires careful planning and proactive management. Employers must ensure safety, protect confidential information, assert their property rights, and establish clear procedures to handle inspections effectively.

At Axis HR Solutions, we specialize in helping businesses navigate complex regulatory environments. Our expertise in HR, employment law, and organizational development equips us to support your company through every step of an OSHA inspection. Visit our website at axishrky.com to learn more about how we can assist you in ensuring compliance and protecting your business.