OSHA final rule on worker walkaround representation under White House review

Washington — OSHA’s rule on worker walkaround representation is undergoing a final review, according to the White House Office of Information and Regulatory Affairs website.

The final rule was sent to OIRA on Feb. 9. It’s unknown how long the office will take to complete the review – one of the final steps in the regulatory process.

The rule would allow workers to designate someone who doesn’t work for their employer – including a labor union member – to represent them during the “walkaround” part of an OSHA inspection.

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.

OSHA first published a proposed rule on the worker walkaround representative designation in August .

“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,” an OSHA press release stated.

After extending the comment period to the end November, the agency received comments from Republican and Democrat leaders of the House Education and the Workforce Committee.

Rep. Virginia Foxx (R-NC), chair of the committee, submitted a comment claiming the Department of Labor is “putting its political goal of promoting unionization at all costs ahead of keeping workers safe.”

She added: “Congress created OSHA and entrusted it with the important mission of protecting the health and safety of the nation’s workers. In order to uphold this vital mission, OSHA should abandon the proposed walkaround rule, which will upend the long-standing inspection process, interfere with labor-management relations, and harm employers and workers.”

Rep. Bobby Scott (D-VA), ranking member of the committee, wrote that OSHA should accept a worker-designated representative by default instead of requiring compliance officer approval.

“OSHA has wisely recognized in the proposed rule that it should advise its inspectorate to recognize the value that a third party put forward as the workers’ walkaround representative can add to an inspection. … [However,] OSHA should more boldly rewrite the proposed rule to accept workers’ choice of representative by default and maximize workers’ rights to representation of their own choosing throughout the inspection, enforcement and contest processes.”

Also submitting a comment in support of the proposal was a group of 67 organizations. Among those in the coalition is the National Council for Occupational Safety and Health and Sur Legal Collaborative, an immigrant and worker rights nonprofit.

“Giving workers the right to select someone as their representative is critical to ensuring their safety and health,” Shelly Anand, co-founder and executive director of the Sur Legal Collaborative, said in a National COSH press release. “Many times workers don’t even know they have the right to participate in the walkaround process.

“Even if they do know, however, many do not feel safe participating for fear of retaliation, especially if they are immigrants and non-English speaking. Without this rule, abusive employers will continue to fight tooth and nail to narrow the scope of OSHA inspections, preventing OSHA from viewing dangerous working conditions.”