Update Applicable to:

All Employers.

What happened?

As a component of the latest regulatory agenda under the Biden administration, the Occupational Safety and Health Administration (OSHA) has put forth a proposal to enact a “walk around” rule. This rule would grant permission for union officials to join OSHA inspectors during their inspections of non-union workplaces.

What are the details?

The rule change would grant union representatives the right to conduct safety walkthroughs in workplaces, even if the employees are not union members. It is part of OSHA’s effort to enhance worker safety and improve communication between workers and OSHA representatives.

OSHA is presenting a proposal to amend 29 CFR 1903.8(c) with the aim of providing clarity regarding the individuals who can act as authorized representatives by employees during OSHA’s physical workplace inspections, commonly known as “walkaround inspections.” This adjustment is intended to bring the regulation into clearer alignment with section 8(e) of the OSH Act, 29 U.S.C. 657(e), and to align with OSHA’s long-established interpretation of the OSH Act.

The proposed revisions to 29 CFR 1903.8(c) by OSHA encompass two key points. Firstly, OSHA seeks to elucidate that authorized representatives by employees can either be employees of the employer or third-party individuals. Secondly, OSHA aims to make it explicit that a third-party representative, authorized by employees, can be deemed reasonably necessary to ensure the effectiveness and thoroughness of a physical workplace inspection due to their knowledge, skills, or experience. This proposed revision broadens the scope of options for employees seeking third-party representation during OSHA inspections, emphasizing that individuals possessing the requisite skills and knowledge are not the sole candidates for this role.

However, it’s important to note that this proposal has also faced criticism and opposition, with concerns about its potential impact on OSHA’s credibility and the burden it might place on employers, and therefore expected to be subject to ongoing debate and discussion.

OSHA is accepting comments on the rule change through Oct. 30.

For more information, please see the links below:

Proposed Rule: Worker Walkaround Representative Designation Process

Article 1, Article 2, Article 3

What do employers need to do?

John Ho, co-chair at the Cozen O’Connor law firm, was quoted in SHRM discussing a proposed rule from OSHA that would allow a union representative to accompany an OSHA inspector during a walkaround at a nonunion worksite. “Given the current administration’s very pro-union policies, it seems likely the expected proposed rule will eventually become a final rule, but it is equally likely that it will face legal challenges,” said John. 

“Employers should carefully consider whether it would consent to a third-party representative on its worksite for a walkaround and/or whether it will deny access, which could trigger OSHA seeking a search warrant. The decision will turn on specific facts, but it would be prudent to consider these ramifications ahead of time.” 

Employers should review the Fisher Phillips Law Firm 7-Step Survival Guide for further assistance.

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