The Occupational Safety and Health Administration's (OSHA) final rule allowing virtually any third-party to be present during job-site inspections (“walkarounds”) as the employee's authorized representative goes into effect on May 31. The final rule marks the culmination of a years-long process that will ultimately provide greater access to workplaces by unions. 

Under current federal regulations, only employees of the employer are permitted to accompany OSHA officials during a workplace inspection as the authorized agent. Under the new rule, even in a non-union setting where the union does not profess to represent a majority of the workforce, that is set to change.

Seeking to restore a “long-standing” practice previously recognized in an Obama-era interpretation letter known as the “Fairfax Memo,” the new rule not only resurrects this practice, but broadens the language of OSHA's rule 29 C.F.R. § 1903.8 to allow any third party chosen by the employees to be present during the inspection if the compliance safety and health officer has determined their accompaniment to be “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” 

OSHA had put the practice on hold following the U.S. District Court for the Northern District of Texas' 2017 decision in Nat'l Fed'n of Indep. Bus. v. Dougherty, which determined the practice to be an overextension of OSHA's authority and one that must be implemented via the rulemaking process. The Trump administration rescinded the prior guidance contained in the Fairfax Memo, and the National Federation of Independent Businesses withdrew its challenge.

Notably, the new rule does not define which third parties may be best suited to be authorized agents of the employees, but merely notes that they may be qualified due to "their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills." These broad qualifications are set to provide broad inroads for union access in the course of OSHA inspections. OSHA also recognizes that the non-employee representative may not represent a majority of the workforce, but will still permit their participation.

While this final rule has been heralded by labor leaders as a victory, employers need to be mindful of the quickly approaching May 31 effective date. While the rule may be subject to legal challenge, absent an order limiting its enforcement, employers should be ready for this new rule to otherwise take effect and the potential for union involvement in OSHA site inspections. 

Employers do have options for challenging OSHA's inclusion of a non-employee representative. The employer may ask what is the basis for the involvement of the proposed third party and how they are “reasonably necessary” to aid the inspection by virtue of their knowledge, skills, or experience. Employers may prohibit the inspection by third parties of areas of a plant containing trade secret or proprietary processes. Employers need to be prepared for this possibility and decide if they are willing to prohibit the third party from entering the facility, as under certain circumstances the refusal may lead to the issuance of a search warrant. Employers should consult with employment counsel about preparing for the final rule to be prepared for this and other situations.