OSHA Moves Closer to Letting Union Members Onsite During Inspections

The Occupational Safety and Health Administration (OSHA) has sent its so-called walkaround rule, which would let union members on employer premises during an agency inspection, to the White House for final approval. We’ve gathered articles on the news from SHRM Online and other outlets.

Judgment Call Allowed

Under the current regulations, a walkaround representative must be an employee. However, the new regulation would let an OSHA inspector make a judgment call on whether a third party, including a labor union member, could participate in the walkaround.

(Safety+Health Magazine)

Rule Proposed Last Summer

OSHA issued its new rule as a proposal Aug. 30, 2023, giving the OSHA inspector no guidance on how judgment calls are made, just as the current standard provides no guidance. As drafted, an employer may have no recourse, short of refusing an inspection, if an inspector selects someone to accompany them on the inspection despite the employer’s strong objections to that person.

(Ogletree Deakins)

Basis for Legal Challenges?

The new rule, if finalized, could create a basis for legal challenges, according to House Education and the Workforce Chairwoman Virginia Foxx, R-N.C. In a letter to U.S. Department of Labor Acting Secretary Julie Su, Foxx wrote, “By pushing a rule without an adequate foundation, OSHA is working against its mandate to ensure safe and healthy conditions for workers by creating an atmosphere of uncertainty and by weakening an already effective walkaround rule for political gain.”

(Letter from Chairwoman Foxx)

Similar Rule Existed Under Obama Administration

OSHA implemented a similar rule during the Obama administration through a letter of interpretation called the Fairfax Memo, but the Trump administration rescinded it in 2017.

“Given the current administration’s very pro-union policies, it seems likely the expected proposed rule will eventually become a final rule, but it is equally likely that it will face legal challenges,” said John Ho, an attorney with Cozen O'Connor in New York City. 

(SHRM Online)

How Many Different Third Parties Might Be Onsite?

According to the proposed rule’s preamble, it would allow for “a multitude of third parties who might serve as representatives authorized by employees for purposes of the OSHA walkaround inspection,” including “[w]orker advocacy organizations, labor organization representatives, consultants, or attorneys who are experienced in interacting with government officials or have relevant cultural competencies.”

The proposed rule does not restrict the number of representatives—whether union organizations, community activists or other third parties—who may accompany the OSHA inspector. 

An impact of the proposed rule will be potential opportunities for promoting union organizing and providing unions access to unrepresented employees at their worksites. 

(Morgan Lewis)