On April 1, 2024, the Occupational Safety and Health Administration (“OSHA”) published its final rule – known informally as the “walk around rule” – which makes two changes to its Representatives of Employers and Employees regulation (29 C.F.R. § 1903.8(c)) to significantly expand who an employee can bring in to join a workplace safety inspection. First, the final rule allows workers to choose third-parties to represent them, instead of the current rule that generally limits such representation to other employees. This allows employees to bring union representatives into the facility in a non-union workplace and give them access they would not be entitled to through traditional union organizing efforts. Second, the regulation eliminates the requirement that non-employee third-parties must have workplace safety formal credentials, such as industrial hygienists. Instead, a Compliance Safety and Health Officer (“CSHO”) may allow a third-party representative to join the inspection if that person will aid the CSHO in conducting “an effective and thorough physical inspection” because of their “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces.” Once again, this change appears designed to expand access by union representatives to facilities where they do not represent the employees. According to the final rule, the representative will be permitted to walk around the work site with OSHA inspector, potentially giving them broad access to the facility.
These revisions to section 1903.8(c) do not change the CSHO’s “authority to determine whether good cause has been shown why an individual is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” The revisions also do not affect other provisions of section 1903.8, such as the CSHO’s authority to deny the right of accompaniment to any individual whose conduct interferes with a fair and orderly inspection or the employer’s right to limit entry of employee authorized representatives into areas of the workplace that contain trades secrets.
This rule change was supported by organized labor, which views the change as furthering worker rights and safety. Business groups, on the other hand, view it as a troubling infringement on their property rights and an attempt to limit restrictions on union access in organizing campaigns that have long been set by the National Labor Relations Board and the courts. OSHA’s final rule is scheduled to go into effect on May 31, 2024. However, this rule will likely be challenged in court, which could delay implementation.