Employer coalition supports effort to repeal OSHA’s walkaround rule

Washington — A coalition of nearly 60 employer groups is urging members of the House to support a resolution intended to repeal OSHA’s final rule on worker walkaround representation.

The Congressional Review Act resolution (H.J. Res. 147), sponsored by Rep. Mary Miller (R-IL), was introduced May 16 and referred to the House Education and the Workforce Committee. 

OSHA published its final rule on April 1. The rule, set to go into effect May 31, will 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.

In a May 17 letter addressed to the lawmakers, the coalition contends the rule “would allow third parties looking to harm employers to accompany OSHA safety and health officers during facility inspections.” The letter's 59 signees include the American Trucking Associations, Associated General Contractors of America and the National Retail Federation.

The letter continues: “The resolution would nullify this inappropriate rulemaking and prevent the agency from issuing a substantially similar rule in the future. Passing the resolution is critical to safeguarding OSHA’s mission of providing safe and healthy workplaces across the country, preventing OSHA officers from being put in the middle of labor disputes between employers and unions, defending employers’ property rights, and defending workers’ right to choose representation through the appropriate process.”

The coalition points out that although OSHA regulations have long permitted an employee to accompany an agency inspector – also known as a compliance safety and health officer – during the walkaround portion of an inspection, “third parties have only been allowed to participate when the individual ‘is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.’” It adds that the policy enabled OSHA to balance the need for outside expertise when necessary and employer property rights.

“OSHA’s final rule, however, abandons this balance with no justification and no explanation as to how the change would increase workplace safety,” the group writes. “It contradicts the plain language of OSHA’s governing regulations, long-standing agency guidance, and past interpretations of the Occupational Safety and Health (OSH) Act and could very likely result in unmanageable OSHA inspections.”

The coalition also contends the rule doesn’t limit the third-party representatives who may be present for an inspection or include guidance on how OSHA inspectors should prioritize, approve or manage these requests.

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

An agency press release states: “For a nonemployee representative to accompany the compliance officer in a workplace, they must be reasonably necessary to conduct an effective and thorough inspection.”

A nonemployee representative, the final rule clarifies, could be “reasonably necessary” based on skills, knowledge or experience.

“This experience may include knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills to ensure an effective and thorough inspection,” the release adds. “These revisions better align OSHA’s regulation with the OSH Act and enable the agency to conduct more effective inspections. OSHA regulations require no specific qualifications for employer representatives or for employee representatives who are employed by the employer.”