OSHA Advances Worker Walkaround Rule

This article is taken from the February 16, 2024 NGFA Newsletter.

A rule that would expand access for third parties to participate as employee representatives in federal workplace inspections is in its final stages of review at the Office of Management and Budget (OMB).

The Occupational Safety and Health Administration (OSHA) on Feb. 9 sent its final “Worker Walkaround Representative Designation” rule to the OMB’s Office of Information and Regulatory Affairs (OIRA), which reviews draft rules and economic analysis for regulatory agencies and provides feedback before final approval for publication in the Federal Register.

The rule would empower OSHA inspectors to allow 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.

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.”

OSHA issued the Notice of Proposed Rulemaking on Aug. 30. Among other issues, the rule would open the door to union representatives at non-union workplaces if an OSHA Compliance Safety and Health Officer (CSHO) determined the third party would positively impact the inspection. However, the NPRM includes no guidance on how CHSOs should determine who qualifies as the “authorized representative” of the employees, or what to do when competing third parties claim interests in an inspection.

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.

Changes resulting from the proposal “would create a system in which otherwise unauthorized third parties can gain access to employers’ private workplaces and their workforces,” potentially including disgruntled former employees, workers on strike against the company, or individuals who pose security, cybersecurity and proprietary risks, the groups noted.

In addition to increasing costs for employers, the change “will undoubtedly” result in contention between employers and OSHA, the coalition added.