Occupational Safety and Health Administration
Regulatory Topic: Walkaround Rule
Regulatory Agency: OSHA
The Occupational Safety and Health Administration (OSHA), which is part of the U.S. Department of Labor (DOL), is primarily responsible for setting and enforcing workplace safety standards first established through the Occupational Safety and Health Act of 1970. With over 1,000 different OSHA standards that each have their own sub-requirements, OSHA’s authority and requirements have a significant impact on businesses across America.
On August 29, 2023, OSHA proposed a new rule to amend its “Representatives of Employers and Employees” regulation, or “worker walkaround” policy. Among other things, the rule will allow union representatives and other third-party representatives the ability to join OSHA workplace inspections in non-union workplaces they have no affiliation with. This could lead to union organizing opportunities and other forms of activism unrelated to OSHA’s mission in enforcing federal health and safety standards.
Barring an extension being granted, the comment period for the rule will close on October 30, 2023.
Key features of the newly proposed Biden OSHA Walkaround rule
The newly proposed walkaround rule attempts to depart from longstanding OSHA policy (see background below) that third party representatives outside of a business may not join in on OSHA inspections unless they are deemed “reasonably necessary” by OSHA due to special expertise to help conduct an inspection.
Although workers traditionally have been able to select their own union representatives to join OSHA inspections when they are a part of a unionized workforce, the new OSHA walkaround rule significantly alters policy by instructing that “a representative authorized by employees may be an employee of the employer or a non-employee third party” and that “employees may authorize a third-party representative reasonably necessary to conduct an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience.”
In its role overseeing workplace safety in U.S. workplaces, OSHA utilizes Compliance Safety and Health Officers (CSHO) to conduct physical workplace inspections. Joining the CSHO is typically a representative of the employer as well as a representative authorized by employees. Unless this new regulation takes place, the current regulation dating back to 2008 requires that: “The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”
In 2013 under the Obama administration, a new interpretation was developed through a memo known as the “Fairfax Memo” (see below) that attempted to set very similar allowances for third-party representatives including unaffiliated union representatives, but the Trump administration withdrew this memo in April 2017 while it was also under a legal challenge. The new walkaround policy outlined here would instead be implemented through a formal rule process as opposed to a guidance memo like 2013, but legal challenges are certain if workplace access is granted to third- parties that differ from precedent.
In forecasting what the new rule is intended to allow, many employers and employees are rightly concerned that this process could be used for union organizing and other priorities unrelated to OSHA’s specific purpose of executing federal health and safety standards. The Coalition for Workplace Safety for instance highlighted among other things that the rule:
- “Union organizers, community activists, or other third parties” could accompany OSHA on inspections.
- No limit is set on how many third-party representatives may be present or how many different ones may be selected by different employees.
- OSHA inspectors have no guidance on how to manage the new rule and the requests that would be made.
- Contradicts the National Labor Relations Act (NLRA) and state property laws, and does so without approval from Congress. NLRA concerns include unions being given representation powers for employees without establishing majority support or employer recognition; potentially providing access simultaneously to competing unions/entities; and putting OSHA inspectors in the middle of disputes between unions or other third parties and employers.
Brief OSHA Walkaround Rule timeline:
OSHA’s walkaround rules have been changed multiple times over decades. Here are some notable dates for changes:
- 1970 – Occupational Safety and Health Act of 1970 is enacted, which also creates OSHA.
- 2013 – OSHA’s “Fairfax Memo,” named after then OSHA Deputy Assistant Secretary Richard Fairfax, was used to implement a walkaround policy granting union access to OSHA inspections, similar to the new August 2023 Biden proposed rule.
- 2017 – The Fairfax Memo is withdrawn by the Trump administration, restoring the previous rules. This occurred while the guidance was facing legal challenges particularly focused on the fact the memo was implementing a significant policy change through mere guidance and not a new regulation (see: National Federation of Independent Businesses v. Dougherty, N.D. Tex., No. 16-2568).
- 2023 – On August 30, 2023, OSHA proposed a new worker walkaround rule that will allow employees to designate third-party representatives to join OSHA inspectors such as union representatives that have no affiliation with the employer or workplace being inspected.
- OSHA Wants to Revise its Worker Walkaround Representative Policy – Should Employers Be Concerned? https://www.littler.com/publication-press/publication/osha-wants-revise-its-worker-walkaround-representative-policy-should
- ABC Expresses Serious Concerns to Congress About OSHA Worker Walkaround Rule. https://www.abc.org/News-Media/Newsline/abc-expresses-serious-concerns-to-congress-about-osha-worker-walkaround-rule
- OSHA Prepares to Join Administration-Wide Effort to Aid Unions. https://www.uschamber.com/employment-law/unions/osha-prepares-to-join-administration-wide-effort-to-aid-unions
- Proposal Would Expand Authorized Participants in Worksite Inspections. https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/osha-proposed-rule-third-party-representative.aspx
- OSHA Plans to Allow Union Walkthroughs of Nonunion Worksites. https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/osha-inspection-union-walkthrough.aspx
“EXAMINING THE POLICIES AND PRIORITIES OF THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION.” House Ed and Labor Subcommittee on Workforce Protections. https://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=409585