OSHA issues proposed rule on worker walkaround representation

Washington — OSHA is accepting comment on a proposed rule that would let workers designate someone who doesn’t work for their employer to represent them during an OSHA “walkaround” inspection.

That person could be from a union or other organization, according to a prepublished version of the proposed rule announced on Aug. 29.

“Specifically,” an OSHA press release states, “the proposed rule clarifies that employees may authorize an employee, or they may authorize a non-employee third party if the compliance officer determines the third party is reasonably necessary to conduct an effective and thorough inspection.

“The proposed changes also clarify that third-party representatives are not limited to industrial hygienists or safety engineers, two examples included in the existing regulation. Third-party representatives may be reasonably necessary because they have skills, knowledge or experience that may help inform the compliance officer’s inspection. This information may include experience with particular hazards, workplace conditions or language skills that can improve communications between OSHA representatives and workers.”

The OSHA policy was first 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 Procedure 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In 2017, the Trump administration rescinded the policy and NFIB dropped its lawsuit.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, submitted to the White House Office of Information and Regulatory Affairs for review on July 17. OIRA completed its review on Aug. 24.

“Congress considered worker participation a key element of workplace safety and health inspections when it passed the Occupational Safety and Health Act,” OSHA administrator Doug Parker said in the release. “This proposal aims to make inspections more effective and, ultimately, make workplaces safer by increasing opportunities for employees to be represented in the inspection process.”

Under OSHA 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.

“The proposed revisions do not change existing regulations that give OSHA compliance officers the authority to determine if an individual is authorized by employees and to prevent someone from participating in the walkaround inspection if their conduct interferes with a fair and orderly inspection, or to limit participation to protect employer trade secrets,” the release states.

Comments are due Oct. 30.

“In addition to the … proposed revisions, OSHA is also seeking public comment on the criteria and degree of deference OSHA should give to employees’ choice of representative in determining whether a third party can participate in an inspection,” the release states.