TITLE 16. LABOR AND EMPLOYMENT

SAFETY AND HEALTH CODES BOARD

Final Regulation

Title of Regulation: 16VAC25-60. Administrative Regulation for the Virginia Occupational Safety and Health Program (amending 16VAC25-60-240).

Statutory Authority: § 40.1-22 of the Code of Virginia.
Effective Date: November 20, 2024.

Agency Contact: Cristin Bernhardt, Regulatory Coordinator and Staff Attorney, Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804) 786-2392, FAX (804) 786-2641, or email cristin.bernhardt@doli.virginia.gov.

Summary:

The federal Occupational Safety and Health Administration promulgated the Worker Walkaround Representative Designation Procedures that were published at 29 CFR Part 1903. The amendments (i) remove the requirement that the representative authorized by the employees to attend an inspection must be an employee of the employer and the listing of industrial hygienist and safety engineer as the two examples of potential third-party accompaniments and (ii) provide a description of the qualifications necessary for a compliance safety and health officer to allow the third party to accompany the inspection. Amendments to the Worker Walkaround Representative Designation Procedures were published on May 31, 2024. This action incorporates these changes into the Virginia general industry standards.

16VAC25-60-240. Walkthrough.

Walkthrough by the commissioner for the inspection of any workplace includes the following privileges.

1. The commissioner shall be in charge of the inspection and, as part of an inspection, may question privately any employer, owner, operator, agent, or employee. The commissioner shall conduct the interviews of persons during the inspection or at other convenient times. The commissioner may take and preserve testimony, examine witnesses, and administer oaths as provided for in 16VAC25-60-245.

2. As part of an inspection, the commissioner may take or obtain photographs, video recordings, audio recordings, and samples of materials, and employ other reasonable investigative techniques as deemed appropriate. As used here, the term "employ other reasonable investigative techniques" includes, but is not limited to, the use of devices to measure employee exposures and the attachment of personal sampling equipment such as dosimeters, pumps, badges, and other devices to employees in order to monitor their exposures.

3. Any employee The representative selected to authorized by employees may be an employee of the employer or a third party. When the representative authorized by the employees is not an employee of the employer, the representative may accompany the commissioner during the inspection of the workplace shall be an employee of the employer if, in the judgment of the commissioner, 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 because of relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces or language or communication skills. Additional employer representatives and employee representatives may be permitted by the commissioner to accompany the inspection team where the commissioner determines such additional persons will aid in the inspection. A different employer representative or employee representative may accompany the commissioner during each phase of the inspection if, in the determination of the commissioner, this will aid in the conduct of the inspection.

4. The commissioner may limit the number of representatives when the inspection group would be of such size as to interfere with the inspection or create possible safety hazards, or when the representative does not represent an employer or employee present in the particular area under inspection.

5. In such cases as stated in subdivision 4 of this section, the commissioner must give each walkthrough representative the opportunity to advise of possible safety or health hazards and then proceed with the inspection without walkthrough representatives. Whenever the commissioner has limited the number of employee walkthrough representatives, a reasonable number of employees shall be consulted during the inspection concerning possible safety or health hazards.

6. Technical personnel such as safety engineers and industrial hygienists or other consultants to the commissioner or the employer may accompany the commissioner if the commissioner determines that their presence would aid in the conduct of the inspection and agreement is obtained from the employer or the commissioner obtains an order under § 40.1-6(8)(b) of the Code of Virginia. All such consultants shall be bound by the confidentiality requirements of § 40.1-51.4:1 of the Code of Virginia.

7. The commissioner is authorized to dismiss from the inspection party at any time any person or persons whose conduct interferes with the inspection.