Does OSHA's New Rule on Third-Party Inspection Representation Open the Door to Unions?

Workplace safety regulations are designed to establish minimum requirements for employers to protect employees from potential work hazards. Although most of these regulations are straightforward, some can leave employers puzzled and concerned about the possible implications. One such regulation, recently finalized by the Occupational Safety and Health Administration (OSHA), allows employers and employees to designate third parties to represent their interests during workplace inspections conducted by an OSHA Compliance Safety and Health Officer (CSHO). There has been much speculation and concern about whether this new rule will allow employees to select union representatives as their representation during these inspections, regardless of whether the facility is a union shop.  

The Rule's Past 

The controversial new rule, known as the Worker Walkaround Designation Process or simply the Worker Walkaround Rule, is actually not new at all. It's an amendment of federal standard 29 CFR 1903.8, which describes the persons or parties employers and employees can choose to represent them during OSHA workplace safety and health inspections. While this right to representation is often waived, some employers and/or employees will request representation when there is a complex issue they'd like an educated professional to weigh in on.  

The long-standing OSHA regulation made it clear that while both parties could request a representative, it was up to the CSHO to authorize representative participation if the CSHO believed the representative would aid in the investigation. The rule stated that employee representatives shall be an employee(s) of the employer but that, in the judgment of the CSHO, a third party who is not an employee would be permitted to participate if the third party could be shown as "reasonably necessary to conduct an effective and thorough investigation."  

However, a chain of events starting with an OSHA standard interpretation letter ultimately changed the Worker Walkaround rule. An interpretation letter is an OSHA memo to a public inquiry asking for a rule clarification. In this case, a memo specified that instead of a third party that was "reasonably necessary" to aid in the inspection, the third party just needed to "make a positive contribution." Many employers felt this language opened the door to union reps who promised employees they could help ensure worker safety needs were being addressed, regardless of whether they had any special technical expertise or association with the facility.  

As a result of the memo, a 2017 case, National Federation of Independent Business v. Dougherty, challenged the rule language and interpretation. In the case, a Texas Federal court ruled that only employees of the employer could participate in workplace inspections, ultimately protecting employers from outside union presence. While OSHA and many employee advocacy groups disagreed with this ruling, much of OSHA rulemaking was halted around this time. When a Director of OSHA was once again appointed in 2021 after a long seat absence, OSHA began revisiting all rule-making that had essentially been on hiatus during the Director's absence.  

The Rule's Future 

OSHA recently finalized the Worker Walkaround Rule, and beginning May 31, 2024, employees can once again designate third parties to accompany a CSHO during workplace inspections. However, the rule isn't exactly as it once was. It previously stated that an employee representative should be the employer's employee(s) unless the non-employee was deemed reasonably necessary based on their technical expertise, such as an industrial hygienist or safety engineer. The updated language removes these occupational examples and adds language specifying that the representative must have the "relevant knowledge, skills, or expertise with hazards or conditions in the workplace or similar workplaces, or language or communication skills" that can aid the CSHO during the inspection.  

Employee advocacy groups argue that this enhanced language gives workers the right to select a representative in their best interest, particularly for immigrant and non-English speaking employees who may have feared retaliation from their employers if they participated in CSHO inspections.  

Employer Concerns 

Although most employers understand the vital role of safety regulations in providing a safe workplace for their employees, many have expressed concerns and outward opposition to the updated final rule regarding third-party employee representation. Most of these concerned employers are worried that the updated language opens the door to union representation during CSHO safety and health inspections, regardless of whether the employer is a union shop. Some employers have also expressed fears that broadening who can attend inspections could increase employee complaints to OSHA or even allow third parties to collect evidence against employers for forthcoming litigation. 

OSHA has responded to these concerns by summarizing in the Federal Register that the rule clarifications better enable employees to select a representative(s) of their choice and that representation is critically important to ensuring that OSHA obtains the necessary information about the worksite conditions and hazards. In the past, OSHA has inconsistently allowed representation, and the amended rule aims to address these inconsistencies. Employers must remember that while non-employee representatives may be allowed to participate in inspections, CSHOs will not approve just anyone. The CSHO must still find that the representative is reasonably necessary to aid the inspection.  

How Employers Can Prepare 

While many industry groups have announced their intent to challenge the rule, employers covered by Federal OSHA safety regulations are encouraged to prepare for it now. This includes reviewing the workplace's OSHA inspection procedures and processes to assess the legitimacy of third-party participation. While CSHOs can only inspect a workplace with the employer's consent, failure to do so typically results in the CSHO obtaining a warrant for inspection, in which case the CSHO will likely be more thorough upon return. Instead, employers are encouraged to allow the CSHO to inspect the workplace with a designated member of management. The only time the CSHO should be permitted not to be accompanied is if the CSHO requests to interview non-supervisory employees who do not request a manager's presence.  

Employers are also encouraged to take their own notes, photos, and samples during the inspection along with the CSHO inspector to help understand and even challenge findings in the inspection report if needed. Employers should remember to protect trade secrets, if applicable, during inspections by requesting no third-party representative access to confidential areas and stating that CSHO photos must be marked as "trade secrets." Employers can also be proactive by conducting regular internal safety and health inspections to address workplace hazards before a CSHO arrives at the door and creating an environment where they work with employees to address safety concerns. 

Employers covered by state-run safety agencies, such as those in California, Oregon, and Washington, may have a little more time until the expanded rule takes effect, as state agencies have up to six months to update state requirements to meet or exceed the federal regulation. It is common for state agencies to wait to see if federal regulations are appealed when there is controversy surrounding the rule.  

Final Thoughts 

While the updated ruling may introduce new complexities for workplaces, it also presents an opportunity for employers to strengthen their safety practices and foster collaboration with workers. Employers can ensure a safe and compliant workplace by proactively addressing concerns, communicating effectively, and prioritizing employee safety. 

Eligible Archbright members have access to safety inspection resources in the mozzo Resource Library and are encouraged to contact the Safety Hotline or mozzo Chat with any questions. Our Safety Consultants, Legal, and HR teams can assist eligible members with mock safety inspections, Safety Committee support, citation reviews, and more. For more information on membership, contact info@Archbright.com.