OSHA proposal on worker walkaround representation under White House review

Washington — OSHA is seeking to revive an Obama administration policy that would allow workers to designate someone who doesn’t work for their employer – including someone from a union or other organization – to represent them during an OSHA “walkaround” inspection.

The proposed rule is under review by the White House Office of Information and Regulatory Affairs.

The policy was detailed in a February 2013 letter of interpretation known as the Fairfax Memo. The National Federation of Independent Businesses sued OSHA officials on the grounds that the policy violated the notice-and-comment requirements in the Administrative Procedures Act of 1946.

In 2017, the Trump administration rescinded the policy and NFIB dropped its lawsuit. 

The current administration is attempting to go through notice-and-comment procedures with the proposed rule, which was submitted for OIRA review on July 17.

The regulatory agenda states: “This rulemaking will clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer, if in the judgment of the compliance safety and health officer such person is reasonably necessary to an effective and thorough physical inspection.”

Under OSHA’s 1903.8, a walkaround representative “shall be an employee(s) of the employer.” However, the regulation also allows an OSHA inspector, also known as a compliance safety and health officer, to make a judgment call on whether a third party can participate in the walkaround.

“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,” the regulation states.