On April 1, 2024, a new final rule was published which significantly revises OSHA’s longstanding regulations regarding an employee’s right to choose a representative to accompany parties during an OSHA’s onsite inspection and increases the likelihood of union access to non-union workplaces.
As outlined in Section 8 of the Occupational Safety and Health Act, employees and employers have the right to choose a representative to participate during OSHA’s physical inspection of the workplace, which may result from employee complaints, emphasis programs, and situations (like serious workplace injuries) that rank high on OSHA’s list of inspection priorities. This physical inspection process, which follows the opening conference, is commonly referred to as the “walkaround.” After judicial challenge to an earlier attempt made by the Obama Administration to affect this change informally through a guidance letter, the Biden Administration recently completed OSHA’s formal rulemaking process.
Under the new final rule, employees are now permitted to bring non-employee third parties on OSHA walkarounds if these individuals are “reasonably necessary to the conduct of an effective and through physical inspection of the workplace by virtue of their knowledge, skills, or experience.” OSHA guidance indicates that reasons for a non-employee third party representative may include language barriers or technical or practical knowledge or experience about the processes and hazards present in the workplace that the OSHA compliance officer may not have. Not surprisingly, the final rule gives the OSHA compliance officer discretion to determine whether an employee’s choice of a non-employee third party is necessary.
In addition to expecting OSHA compliance officers to be extremely deferential to employee’s choice of representative, employers should also anticipate confidentiality and trade secret disagreements, as well as attempts by community and union organizers to gain access to non-union workplaces and (vice versa) attempts by employees to introduce a union presence in their non-unionized workplaces.
Employers should contact experienced OSHA defense counsel to immediately discuss the implications of OSHA’s new rule and strategies regarding when and how to dispute qualifications of a proposed third-party employee representative and to deny access to their workplace.