OSHA Issues Rule Allowing Unaffiliated Third Parties Access to Private Employer Workplaces

On Friday, the Occupational Safety and Health Agency (OSHA) issued final “walk around” rules that will allow persons such as union representatives/activists or other third parties to accompany OSHA Inspectors into non-union workplaces (onto private property) to walk with them during safety inspections. “The new rules give the employer and the employee the right to authorize a representative to accompany the OSHA official during a workplace inspection.” The final rule clarifies that, consistent with the law, workers may authorize another employee to serve as their representative  or select a non-employee.

Advocates for this rule state that it protects workers that believe they may be retaliated against by their bosses for assisting inspectors while inspecting a work facility. Advocates further state that an outside representative can bring expertise to the inspection process. However, the rule does not require the outside party to have safety and health expertise.

Though the rule states that the representative “must be reasonably necessary to conduct an effective and thorough investigation” the rules provide no clarity for how an OSHA representative is to determine if this outside representative should be allowed to participate in the inspection.” Further, Coalition for a Democratic Workplace (CDW) Chair Kristen Swearingen stated this rule allows individuals with an agenda against the employer – including union that have not convinced the workers to obtain their representation – to infiltrate the workplace and obtain proprietary information or information about the employer and/or workers”. She also notes that, “Moreover, there is no limit to the number of representatives that can participate, meaning multiple unions trying to organize a workplace could be permitted access.”

The National Association of Manufacturers Chief Legal Officer Linda Kelly stated, “Today’s rule does nothing to advance OSHA’s mission of ensuring safe working conditions but it does result in forcing businesses to accommodate third parties with no safety expertise in their facilities infring(ing) on employers’ property rights, invite(ing) new liabilities and introduces elements of chaos and disruption to safety inspections.”

Greg Sizemore, VP of Health, Safety, Environment and Workforce Development for the Associated Builders and Contractors (ABC) stated, “By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law.”

This rule will go into effect sixty (60) days after publication in the Federal Register which will probably be early next week.

In addition to allowing third parties to walk around with OSHA representatives, the rule also qualifies that the third party can be people with a “variety of skills, knowledge, or experience that could aid” the inspection. They do not have to have special skills in areas such as industrial hygiene or safety engineering.

As of last week, no legal challenge has been filed to these rules but when a similar regulation was published during the Obama Administration, a lawsuit was filed but ultimately dropped when the Trump Administration came in and withdrew the rule in 2017.

ASE will be following developments with this rule and how employers may have to comply with it.

Sources: Labor Union News. OSHA Issues Final “Walk Around’ Rule Allowing Union Representatives Into Non-Union Workplaces. (3/29/2024); LAW 360. OSHA Finalizes Rule Letting Unions Join Job Site Inspections. (3/29/2024); DOL

By Michael Burns, courtesy of SBAM-approved partner, ASE.

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