The deadline for comments on the Occupational Safety and Health Administration’s (OSHA) proposed rule on the “Worker Walkaround Representation Designation Process” is fast approaching. Employers and other stakeholders have until November 13, 2023 to submit comments on the new rule, which would allow employees to designate virtually any third party – including a union representative – to accompany OSHA inspectors on a workplace walkaround, regardless of whether the third party is an employee of the company or if the facility is a union shop.
What the Proposed Rule Would Change
The new rule would revise OSHA 29 CFR 1903.8c by broadening who can be designated by employees as their representative on workplace inspections. The current rule states that the representative 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.”
Conversely, the proposed rule would allow for the employee’s authorized representative to be “an employee of the employer or a third party; such third-party employee representative(s) may accompany the OSHA Compliance Safety and Health Officer when they are reasonably necessary to aid in the inspection.” OSHA explained that “reasonably necessary” means that the representative would make a “positive contribution to the thorough and effective inspection,” such as if this individual has a specific expertise or could provide interpretation for a non-English speaking worker.
The proposed rule is similar to an Obama-era rule that OSHA implemented with a 2013 letter of interpretation known as the Fairfax Memo. OSHA stated in the letter that “workers at a worksite without a collective bargaining agreement may designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative.” The National Federation of Independent Businesses (NFIB) sued OSHA for adopting a rule without the notice and comment period required under the Administrative Procedure Act of 1946, and the rule was eventually revoked during the Trump administration in 2017.
Employer Concerns over New Rule
Similar to the reaction following the Fairfax Memo, employers are concerned that the proposed rule would encourage labor unions to get involved in OSHA inspections and worker complaints in order to gain access to non-union facilities.
How to Comment on the New Rule
The comment period for the proposed rule (88 FR 59825) was extended from October 30 to November 13, 2023. Written comments and attachments may be submitted electronically at the Federal eRulemaking Portal, www.regulations.gov. Follow the online instructions for submitting comments. Note that all comments, including any personal information you provide, are placed in the public docket without change and may be made available online at www.regulations.gov.
Sheehy, Ware, Pappas & Grubbs can assist you with the complex OSHA compliance process and help you assert your rights throughout the OSHA inspection process. Few firms in the United States match our expertise in OSHA matters. Our OSHA attorneys have represented hundreds of clients in OSHA investigations, and we are able to perform 24/7 rapid response on-site coordination with our clients, often arriving before the OSHA inspector. For assistance with your OSHA matter, contact the OSHA attorneys at Sheehy, Ware, Pappas & Grubbs.