OSHA’s Controversial Walkaround Rule Becomes Final

On April 1, 2024, the Occupational Health and Safety Administration (OSHA) published the final rule on worker walkaround representation. The rulemaking has been on a very fast track, progressing from a notice of proposed rulemaking last summer to the final rule in just seven months.

While the final rule reflects only a slight change in wording from the existing rule, its impact is substantial. It allows workers to designate a non-employee—including a labor union representative—to represent them during the “walkaround” part of an OSHA inspection.

According to the press release announcing the rule’s publication in the Federal Register, the changes are intended to accomplish the following purpose:

The final rule clarifies that consistent with the law, workers may authorize another employee to serve as their representative or select a non-employee. For a non-employee representative to accompany the compliance officer in a workplace, they must be reasonably necessary to conduct an effective and thorough inspection.

The previous rule limited employee representation to “an employee(s) of the employer” and indicated that a non-employee third party could be an individual possessing technical credentials “such as an industrial hygienist or a safety engineer.” The new rule eliminates any assumption of technical expertise. Instead, it says that a third party must only be deemed “reasonably necessary” by the OSHA compliance officer to participate in a walkaround inspection because that individual possesses “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.”

Labor Likes it a Lot

Expanding the types of third parties permitted to represent employees during OSHA inspections has been welcomed by labor organizations throughout the country. United Steel Workers (USW) President David McCall’s response is typical. He released the following statement upon the publication of the final rule:

It only makes sense to allow workers to designate their own representatives in OSHA investigations. This is the same right we afford to employers, and there is no reason workers should receive different treatment. This rule is critical to the success of OSHA safety investigations and to our efforts to make all workplaces safer.

For labor organizers everywhere, this new rule is a momentous victory.

Business Groups are Concerned

Business leaders are concerned that the rule will create a system where “third parties” could include angry employees, family members of injured employees, workers on strike, union representatives, plaintiff attorneys, community and activist groups, and the media. Many so-called “experts” have been trying for decades to have early, unfettered access to workplaces after an accident. Now they have it.

The rule also raises questions of whether OSHA compliance officers would consider it “reasonably necessary” to permit any of these third-party walkaround participants to interview employees or managers. The rule significantly expands access to information — impacting litigation and fomenting adverse political/media activity — as well as inevitably increasing the number of OSHA complaints.

Beth Milita, Executive Director of NFIB’s Small Business Legal Center, said:

This rule is not about worker safety; it is about facilitating the intimidation of small business owners by allowing unions to initiate and participate in inspections of workplaces they wish to infiltrate. By allowing union representatives to participate in federal inspections of non-union workplaces, OSHA is disregarding the standards outlined in the Occupational Safety and Health Act and longstanding agency guidance and interpretations to suit the agenda of union leaders at the expense of small businesses.

What Now?

Employers are advised to review their procedures for OSHA inspections. What will you do when an unknown “third party” accompanies an OSHA compliance officer into your facility? It’s always good to have a plan.

As I’ve advised my clients in the past, employers have the Fourth Amendment right to refuse an onsite, walkaround inspection on any basis and require OSHA to get a warrant to conduct its inspection. Another possible action is to deny access only to the non-employee third party — if it is unclear why the third party is there — and tell any OSHA officials it’s okay for them to proceed. More than likely, OSHA will see this as a “refusal of entry” and seek a warrant. The employer will then have the opportunity to challenge the warrant before the U.S. District Court and, in all likelihood, prevent any third parties with ulterior motives from entering the jobsite.

Multiple parties are exploring litigation options and plan to challenge the rule after it goes into effect at the end of May. Stay tuned. This discussion is far from over.

In the meantime, if you have any questions about how this new rule will affect your business — or if you have received a citation for any reason — don’t hesitate to contact Orr & Reno for assistance.

James F. Laboe