On November 13, 2023, the U.S. Small Business Administration’s Office of Advocacy (Advocacy) submitted comments to the Occupational Safety and Health Administration (OSHA) on their proposed Worker Walkaround Representative Designation Process (“Worker Walkaround”) rule [88 Fed. Reg. 50925 (August 30, 2023]. (PDF, 272 KB)
OSHA’s proposed rule would clarify the representative(s) authorized by an employee that may accompany an OSHA inspector during an inspection. The representative(s) may be an employee of the employer or a third party if, in the judgement of the OSHA inspector, good cause has been shown why their “participation” is reasonably necessary to conduct an effective and thorough inspection because of their relevant knowledge, skills, experience, or language skills with hazards or conditions in the workplace or similar workplaces. OSHA has certified under the Regulatory Flexibility Act (RFA) (5 U.S.C. § 601) that the proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.
- Advocacy hosted a small business regulatory roundtable on October 25, 2023, to discuss the proposed rule and obtain small business feedback. A number of small business representatives objected to the proposed rule, arguing that the proposed rule exceeds OSHA’s statutory authority and that the clear result would be that employers would face the added costs of screening, processing, and accompanying additional third parties into their workplaces during the OSHA inspection process.
- Advocacy stated that OSHA’s RFA certification is improper because OSHA has failed to include the direct and foreseeable costs that small employers would incur as a result of the various new categories of non-employee third-party representatives, beyond safety and health experts, who would now join OSHA during workplace inspections.
- Advocacy recommends that OSHA conduct additional outreach to small employers concerning the impact of the proposed rule and revise and republish its RFA analysis with a valid assessment of costs to small entities before proceeding. Advocacy stated that it would welcome the opportunity to help facilitate such outreach.
For more information, please contact Bruce Lundegren, Assistant Chief Counsel, at bruce.lundegren@sba.gov or (202) 205-6144.