The long awaited “Worker Walkaround Representative Designation Process” proposal from OSHA was published this week. The proposal would grant workers the ability to select individuals not employed by their company to represent them during an OSHA "walkaround" inspection. This proposed rule, announced on August 30, introduces the potential for representatives from unions or other organizations to fulfill this role, even in workplaces where there is no union representation.
Background: The roots of this policy trace back to a 2013 letter of interpretation known as the “Fairfax Memo.” However, the National Federation of Independent Businesses filed a lawsuit against OSHA officials, asserting that the interpretation contravened the notice-and-comment requirements stipulated in the Administrative Procedure Act of 1946. In 2017, during the Trump administration, the policy was rescinded, and the lawsuit by the NFIB was subsequently withdrawn.
According to an official OSHA press release, the essence of the proposed rule is to provide clarity regarding the range of options for employee authorization. Specifically, the rule aims to clarify that workers can grant authorization to either a fellow employee or a third-party individual. The involvement of a non-employee third party would be determined by a compliance officer with the condition that such involvement is reasonably necessary to ensure a thorough and effective inspection.
Moreover, the proposed changes emphasize that third-party representatives are not confined to a specific set of professions such as industrial hygienists or safety engineers, which were the only examples outlined in the current regulation. The focus shifts to the skills, knowledge, or experience that a third-party representative could contribute to inform the compliance officer's assessment. This could include expertise related to specific hazards, workplace conditions, or language skills that facilitate improved communication between OSHA representatives and workers.
Notably, under OSHA 1903.8, a walkaround representative is specified as an "employee(s) of the employer." Nevertheless, the regulation affords OSHA inspectors, referred to as compliance safety and health officers, the authority to assess whether the inclusion of a third party is appropriate in the walkaround. The proposed revisions do not infringe upon existing regulations that empower OSHA compliance officers to ascertain authorization and prevent any interference with the inspection process or the protection of employer trade secrets.
Outlook: The comment period will close on October 30, 2023. HR Policy will provide comments on the proposal and provide further information to members.
