OSHA issued its final “Walkaround” rule after publishing it in proposed form last fall. The final rule, which allows workers to choose third-party representatives – including union representatives– to accompany OSHA safety inspectors during a workplace inspection could potentially allow nearly unrestricted access to employer facilities. The rule goes into effect May 31, 2024.
The Association submitted comments in opposition to the proposal, arguing that it provided zero justification for how the rule was meant to improve or ensure workplace safety. Unfortunately, but unsurprisingly, the final rule is nearly identical to the proposal, with no substantive changes. The rule presents several workplace safety issues for employers and provides no limits on the number, type, or conduct of representatives that can accompany OSHA inspectors.
What’s in the rule?
- The rule specifies that workers can designate third-party representatives – including union officials and outside activists – to accompany OSHA inspectors during site inspections of employer facilities, even in non-union organizations. Such inspections are nominally for the purpose of ensuring employer compliance with workplace safety standards.
- Such third parties must be “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace” to accompany OSHA inspectors, the latter of which have total discretion on whether third parties meet these criteria.
- Per the rule, having relevant skills, knowledge, or experience with similar workplace conditions, or having language or communication skills, would qualify a third party to accompany an OSHA inspector.
- There is no limit on the number of third parties that may be designated or that may accompany an OSHA inspector.
Takeaways for employers:
- Given the incredibly low bar third parties must meet to qualify as “reasonably necessary” to accompany OSHA inspectors, the rule potentially enables nearly unrestricted access to employer facilities.
- Expect organized labor to take advantage – union representatives are likely to see the rule as a golden opportunity to gain a foot in the door of non-union facilities, access employees for organizing opportunities, and identify anything in a facility that could merit an unfair labor practice charge.
- Employers facing site inspections should contact the designated OSHA representative with any concerns regarding potential third party representatives (even if such concerns are ultimately not considered).
- Under existing OSHA regulations, employers have a right to identify areas in the workplace that may contain trade secrets or proprietary information, and request that such areas are off-limits for non-employees or employees normally without access to such areas that may otherwise accompany OSHA inspectors. This right is retained in the regulations and employers should exercise it where necessary when facing a site inspection.
- The rule is likely to face a swift legal challenge from the business community, which could temporarily halt and/or invalidate the rule entirely. In the meantime, however, employers should fully prepare to comply with the rule.
