On March 29, the U.S. Labor Department announced its final rule that allows employers and employees to authorize a representative to accompany Occupational Safety and Health Administration (OSHA) officials during inspections of their workplace. 

This representative can be a current employee or a non-employee. A non-employee must be “reasonably necessary” to conduct an effective and thorough inspection alongside federal inspectors, a DoL news release noted. The final rule will be published in the Federal Register on April 1.

• California Safety Board Approves Indoor Heat Rules (March 27)
• NYC Approves Nation’s First Congestion Pricing for Vehicles (March 27)

The agency advocates that the final rule — effective May 31 of this year — will aid OSHA’s workplace inspections by better-enabling employees to select representative(s) of their choice in these inspections and boost employee representation.

Several trade associations — including the National Association of Wholesaler-Distributors, the National Association of Manufacturers and Associated Builders & Contractors — quickly issued statements voicing strong opposition to rule, consistent with previous statements after OSHA’s previous notices of the proposed rule in January and August of last year.

NAW Chief Government Affairs Officer Brian Wild issued the following statement on March 29:

“In yet another instance of favoring big labor’s agenda, the Biden Administration revived the failed Obama era policy under the guise of improving worker safety. This rule does nothing to improve workplace safety, instead it allows third-party individuals access to warehouses during OSHA inspections for potentially their own personal benefit, including union organizing, without any real safeguard for employers and employees.”

NAM Chief Legal Officer Linda Kelly released the following statement on March 29:

“Today’s rule does nothing to advance OSHA’s mission of ensuring safe working conditions. Forcing businesses to accommodate third parties with no safety expertise in their facilities infringes on employers’ property rights, invites new liabilities and introduces elements of chaos and disruption to safety inspections.

“By unlawfully expanding third-party access to manufacturers’ worksites, this proposal clearly violates OSHA’s statutory mandate to conduct inspections within ‘reasonable limits and in a reasonable manner’ with ‘minimum burden’ on employers, and potentially violates manufacturers’ constitutional rights. And, for the first time, OSHA would determine who qualifies as an ‘authorized representative’ of employees, which until now has been exclusively recognized as the jurisdiction of the National Labor Relations Board.

“This is another clear example of the federal regulatory onslaught—a proposal that upends settled precedent and ignores the reasoned decision-making required by the Administrative Procedure Act. For these reasons, the NAM will be considering legal action to reverse this incredibly destabilizing decision.”

Greg Sizemore — ABC’s Vice President of Health, Safety, Environment and Workforce Development — issued the following statement on March 29:

“Now, construction employees and employers could face serious safety concerns because the final rule has the potential to allow anyone on a jobsite. There simply is no business case for this final rule and no benefit during a compliance inspection. By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Sizemore. “This final rule negatively impacts the rights of employers while simultaneously ignoring the rights of the majority of employees who have not authorized a union to represent them.”

Background

The “walkaround” rule has been staunchly contested for years ever since the Obama administration issued an interpretation letter in 2013 related to Occupational Safety and Health Act regulations at 29 C.F.R. § 1903.8(c) that said only employees of the inspected company could accompany federal officials on inspections. 

That letter — known as the “Fairfax Memo” — mentioned examples of who could participate in inspections, which included union officials of labor organizations that did not represent the employer’s employees and community organizers. OSHA officially rescinded that interpretation letter in 2017 amid mounting legal challenges, but it has been a sticking point for opposition to OSHA inspection policies ever since.

In January 2023, OSHA announced it planned to publish notice of a proposed rulemaking related to 29 C.F.R. § 1903.8(c), clarifying that union representatives could accompany agency inspectors.

On Aug. 30, 2023, OSHA issued its new rule proposal in which its executive summary noted it would allow for “a multitude of third parties who might serve as representatives authorized by employees for purposes of the OSHA walkaround inspection,” including “[w]orker advocacy organizations, labor organization representatives, consultants, or attorneys who are experienced in interacting with government officials or have relevant cultural competencies.”