The Occupational Safety and Health Administration (OSHA) “walkaround” rule went into effect on May 31, 2024. The rule is controversial, to say the least, and even before its effective date, it was targeted by industry and trade groups, with perhaps the most high-profile of these efforts being a federal lawsuit in Texas filed by the U.S. Chamber of Commerce, the National Association of Manufacturers, and Associated Builders and Contractors, Inc., among other plaintiffs.
The new rule makes a pivotal change in OSHA’s workplace inspection regime by allowing employees in some instances to authorize a third party to accompany OSHA inspectors during workplace evaluations. It has long been accepted that the Occupational Safety and Health (OSH) Act permits both employers and employees to have a representative present during OSHA inspections; however, it has been unclear whether the employee representative had to actually be an employee. The final rule clarifies that employee representatives may be an employee of the employer or a third party.
This determination has important implications.
The new rule empowers employees to appoint an individual, or individuals, they deem fit to represent them during an inspection. See 29 C.F.R. § 1903 (2024). This may be another worker or, notably, a non-employee. On its own, opening up the workplace to non-employees would give employers cause for concern (which is one reason why the law contains trade secret and national security carveouts); however, the standards OSHA seeks to write into law depart from past practice.
§ 1903 invokes a standard of reasonable necessity for when inspectors can permit third-party persons to participate in a workplace evaluation. The new rule, however, adds language that greatly expands third parties who might gain access to workplaces under the reasonable necessity standard, including those who possess “language or communication skills” deemed relevant by the OSHA inspector. Additionally, per § 1903.8(b), OSHA’s inspectors will “have authority to resolve all disputes as to who is the representative authorized by the employer and employees for the purpose of this section,” which removes any real administrative due-process constraints with which employers could contest OSHA’s judgment regarding non-employee representatives.
Those due-process considerations become very relevant, especially for employers who operate non-union shops, and give rise to their concern about potentially having union organizers gain access to their workplaces through a side door created by OSHA. The aforementioned lawsuit explicitly makes this case but also raises the equally frightening prospect of providing the plaintiffs’ bar with valuable insights “to ferret out potential opportunities for litigation against employers.” We will closely monitor the status of Chamber of Commerce, et al. v. OSHA, et al. Absent a reversal of public policy—an unlikely scenario under the current administration—the lawsuit represents the best chance to invalidate a rulemaking that is fraught with administrative law concerns and seems more like a solution in search of a problem.