On Monday, April 1, 2024, OSHA published its controversial final “walkaround” rule. The rule significantly expands the ability of non-employees, including labor unions, to gain access to a company’s worksite during OSHA inspections. The rule takes effect on May 31, 2024.
Background
Under OSHA’s previous rule, employees could designate an employee representative to accompany an OSHA compliance safety and health officer (CSHO) during a worksite inspection. The rule permitted a narrow exception for non-employee designees who had technical credentials, “such as an industrial hygienist or safety engineer” to accompany OSHA when “good cause” was shown that their presence was “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” The rule also had provision for verifying the qualifications of the non-employee.
Expansion of Representation Rights
Under the new rule, that narrow exception has been greatly expanded. Outsiders, that is, third party representation during OSHA inspections, will not be limited to individuals with skills or technical knowledge similar to industrial hygienists or safety engineers.
Rather, the OSHA inspector can allow a third party representative to participate in the inspection where it is “reasonably necessary to aid the inspection because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.” There is no provision for verifying the knowledge, skills, or experience of the representative.
Impact
“Employers should assume that having a non-technical outsider on a company’s OSHA inspection is a sign of a bigger problem; it would not be by coincidence,” according to Attorney Padric Noonan. “At the very least, having an outsider on a company OSHA inspection will be disruptive to some degree both during and after the inspection. More worrisome for employers will be the prospect of the inspection leading to union organizing,” he added.
The rule’s preamble states the new rule would allow for “a multitude of third parties who might serve as representatives authorized by employees for purposes of the OSHA walkaround inspection,” including “worker advocacy organizations, labor organization representatives, consultants, or attorneys who are experienced in interacting with government officials or have relevant cultural competencies.”
Comments submitted to OSHA during its public comment period raised a number of constitutional concerns and the rule will likely be challenged in court. Until then, employers should prepare for the rule to take effect on May 31st.
Editor’s Note: The OSHA Walk Around Rule will be explained in detail in the firm’s Annual Legislative Update in September.