United States: "Walk This Way": What Are Employers' Walk-Around Rights During OSHA Inspections?

Under the Occupational Safety and Health Act of 1970 (OSH Act), employers have a right to be given the opportunity to accompany an OSHA compliance safety and health officer (CSHO) during an inspection of the workplace. In most cases, there is no issue with compliance: when a CSHO shows up to conduct an inspection and presents their credentials to the employer, the employer knows that OSHA intends to conduct an inspection and has an opportunity to guide the walk-around. 

But where there are multiple employers at a worksite—such as a construction site—a CSHO may present credentials to the general contractor and conduct an inspection of the site, even though there may be multiple subcontractors working at the site. Does each employer at a worksite have the right to accompany the inspector during a walk-around inspection? 

Employers Have A Right To Be Present For OSHA Inspections

Employers have a clear right to be present for OSHA inspections at their worksites and to accompany OSHA inspectors during the walk-around part of the inspection. Section 8(e) of the OSH Act provides that "a representative of the employer . . . shall be given an opportunity to accompany the Secretary['s] . . . representative during the physical inspection." Similarly, the Secretary of Labor has promulgated a regulation that further enshrines this right:

A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace for the purpose of aiding such inspection.

What Happens If This Right Is Violated?

Let's say OSHA conducts an inspection of a worksite after it received a complaint of an alleged safety hazard. The general contractor of the site consents to the OSHA inspection, and during the inspection the CSHO sees a possible trenching violation related to your company, a subcontractor at the worksite. Your company was not provided any notice that OSHA was conducting an inspection. Can you challenge the inspection and resulting citation on the basis that you were not provided the opportunity to participate in the walk-around inspection?

Maybe. No violation will be found if there is "substantial compliance" by OSHA with Section 8(e) of the OSH Act, and the court will not exclude subsequent citations that may be issued unless the employer can show actual prejudice. 

The controlling Occupational Safety and Health Review Commission (OSHRC) case is A. J. McNulty & Co., Inc., 19 O.S.H. Cas. (BNA) ¶ 1121 (O.S.H.R.C. Oct. 5, 2000). In that case, the CSHO held an opening conference with each contractor and subcontractor on the first day of the inspection. McNulty, a subcontractor on the site, was too busy to attend the opening conference. Within two hours, however, the CSHO encountered both McNulty's foreman and project manager and informed them that they or other company representatives could accompany him during the inspection. Subsequently, on each day the CSHO was onsite, he would locate a McNulty representative after he observed a hazard in an area where the company was working. On the second day of the inspection in particular, the CSHO "came upon a number of cited hazards while McNulty representatives were not present, but he located a McNulty representative within approximately one to fifteen minutes in each instance and reported each hazard to" a McNulty representative.

In rejecting McNulty's argument that the CSHO was required to alert each contractor prior to the inspection occurring on each subsequent day, the Commission held that a CSHO "need not alert an employer prior to inspecting its work area if he informs the employer of the accompaniment right at the outset of the inspection and makes an effort within a reasonable time to report any violations to the employer." The Commission held that the CSHO's conduct "substantially complied" with § 8(e) because the immediate notification to McNulty of the hazard after it was discovered by the CSHO "gave the McNulty representatives an opportunity to ask the CSHO what he had observed, including which employees were exposed to the hazard when it was detected." The Commission further held:

Moreover, a compliance officer's failure to do one or both of these things to achieve substantial compliance with § 8(e) does not warrant vacating a citation item unless the employer makes a specific showing that the misbehavior prejudiced it in preparing or presenting its defense.

The Commission held that McNulty was not prejudiced because "its representatives learned of possible violations almost immediately after the CSHO observed them." 

Additionally, federal courts have found substantial compliance with § 8(e) in the following circumstances:

  • The CSHO failed to take a representative of the prime contractor on the walk-around but had informed the company that an inspection was about to begin and had provided it with the OSH Act and an informational pamphlet explaining the Act, and the contractor did not assert its right to be present. Chicago Bridge & Iron Co. v. OSHRC, 535 F.2d 371 (7th Cir. 1976).
  • The employer's superintendent was not notified of the inspection until part of it had been completed, although the CSHO had made an unsuccessful attempt to locate the superintendent prior to the walk-around. Hartwell Excavating Co. v. Dunlop, 537 F.2d 1071 (9th Cir. 1976).
  • Where the CSHO did not "seek out" an employer's representative to accompany him during the walk-around, but the employer was aware of the CSHO's presence and "made no effort to participate in" the walk-around. Frank Lill & Son, Inc. v. Sec'y of Labor, 362 F.3d 840 (D.C. Cir. 2004).

Additionally, employers must specifically identify how they were prejudiced by the failure of OSHA to provide the right to attend the walk-around. Actual prejudice can be shown where "further material or mitigating facts might have emerged" if the employer representative had accompanied the CSHO on the walk-around. Accu-Namics, Inc. v. Occupational Safety & Health Review Comm'n, 515 F.2d 828 (5th Cir. 1975). Case law suggests that a generalized claim of prejudice, without specifically identifying what the prejudice is and how it arose, is an insufficient basis to have a citation vacated based upon the failure to provide the walk-around right. 

Summary And Best Practices

Employers have a clear right to be present for any walk-around that is conducted during an OSHA inspection. That said, for OSHA to comply with providing this right to employers, case law suggests that it does not need to specifically say as much to employers: there is no Miranda requirement that unless certain words be read, anything that happens afterwards is excluded. Rather, as long as OSHA substantially complies with § 8(e) of the OSH Act, employers cannot have citations that are subsequently issued be vacated under any exclusionary rule unless they can show specific prejudice related to the failure to provide them with their walk-around rights. 

Therefore, best practices for protecting your walk-around rights include:

  • If you become aware that OSHA is conducting an inspection at a place where your employees work, be proactive and assert your rights to be present for the walk-around even if the CSHO has not specifically told you that you have a right to be present for the inspection.
  • Communicate with other employers at your job sites to ensure that there is a process in place for alerting the other employers who could be affected by the inspection if OSHA shows up.
  • If you have reason to believe that OSHA violated your walk-around rights, think about what specific prejudice you were caused—such as providing additional information to the CSHO—because the Commission will require a showing of actual prejudice to have any citation vacated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions