OSHA publishes final worker walkaround rule Sarah Gonzalez April 5, 2024

OSHA publishes final worker walkaround rule

The Occupational Safety and Health Administration (OSHA) on April 1 published its final rule to expand access for third parties to participate as employee representatives in federal workplace inspections. The “Worker Walkaround Representative Designation” rule is effective May 31.

The final rule clarifies the rights of employees to authorize a representative – employee or non-employee – to accompany an OSHA Compliance Safety and Health Officer (CSHO) during an inspection of their workplace. Under the rule, the CSHO has the discretion to determine if any potential third-party representatives would be qualified to participate in the inspection.

According to OSHA’s announcement, a non-employee representative “may be reasonably necessary based upon skills, knowledge or experience” including regarding to “hazards or conditions in the workplace or similar workplaces, or language or communication skills to ensure an effective and thorough inspection.”

Multiple parties are considering litigation to challenge the rule.

Among other issues, the rule could open the door to union organizers, community activists, or other third parties who do not officially represent the employees or the government to accompany OSHA on an inspection of a workplace if a CSHO determined the third party would positively impact the inspection. OSHA also places all the responsibility for determining whether third-party representatives are “reasonably necessary” on the CSHO without providing specific criteria for guidance. OSHA inspectors will, therefore, be caught in the middle of labor and organizing matters that will distract from their core mission of identifying workplace safety issues.

NGFA joined the Employers Walkaround Representative Rulemaking Coalition led by Conn Maciel Carey LLP which drafted and submitted comments in November urging OSHA to withdraw the proposal. “In several ways, the proposal significantly expands the scope of individuals who can be designated as third-party authorized representatives, creating unworkable practical challenges for employers,” noted the coalition. The proposal represents “a significant change to the OSHA’s longstanding approach to physical inspections of American workplaces and raises novel and complex issues of law.”

In its comments, the coalition noted that the proposal would violate several laws, including the OSH Act, the National Labor Relations Act, and the Fourth Amendment.