By Eric J. Conn, a founding partner of Conn Maciel Carey and Chair of the firm’s OSHA • Workplace Safety Practice Group, and Mark M. Trapp, a partner in the firm’s Labor • Employment Practice Group.

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In January 2023, OSHA stated its intention to “clarify” the right of even non-union workers to specify a union representative “to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer[.]” Consistent with this stated intention, last week OSHA unveiled a Notice of Proposed Rulemaking (NPRM) that would greatly expand the scope of non-employees—particularly union representatives—to participate in workplace walkarounds conducted as part of OSHA enforcement inspections.

Titled “Worker Walkaround Representative Designation Process,” the NPRM proposes to amend the existing regulation governing the participation of third parties as employee representatives in OSHA inspections. The NPRM seeks to change two key components of that existing regulation, found at 29 CFR § 1903.8(c).

First, the NPRM would change the existing language which, under most circumstances, limits the representative to individuals who are employees of the employer, to now allow non-employee third parties to act as representatives. For example, the current regulation begins by stating that “[t]he representative(s) authorized by employees shall be an employee(s) of the employer.” The proposal would change this language to read: “The representative(s) authorized by employees may be an employee of the employer or a third party.”

Second, the NPRM would expand the type of third parties permitted to walk around. The existing regulation allows a non-employee “such as an industrial hygienist or a safety engineer” only where accompaniment by such a representative “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace[.]” Historically, that has resulted in only permitting employee representatives who possess some relevant technical expertise and credential, or perhaps a unique language interpreter. In sharp contrast, the proposal eliminates the list of technical credentials and suggests that a third-party representative may be “reasonably necessary” simply because of “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.” OSHA appears to be contemplating a wide array of representatives to traipse through the workplace. The NPRM states:

Worker advocacy organizations, labor organization representatives, consultants, or attorneys who are experienced in interacting with government officials or have relevant cultural competencies may be authorized by employees to represent them on walkaround inspections.”

While not obviously designed to make workplaces safer, the proposed rule is consistent with the Biden Administration’s pledge to be “the most labor-friendly administration in history.” The potential consequences of such a rule would grant union representatives and other labor or community activist groups direct access to even non-union workspaces and employees, allowing such groups to utilize the OSHA inspection process as a front for organizing campaigns at workplaces where, otherwise, they would not have access.

But the consequences extend even further than allowing union representatives entry into the workplace. The proposal could literally open the door to a multitude of workplace disruptions. For example, the NPRM might expand access to nefarious third parties, political activists, or others with their own agenda, even competitors seeking access to proprietary information or trade secrets, or attorneys representing (or seeking to represent) employees in other workplace or personal injury matters. At the very least, OSHA’s proposed rule would greatly expand the opportunity for non-employees to accompany OSHA inspectors during physical inspections at workplaces across the country.

Employers and other interested parties have until October 30 to exercise their right to file written comments in the rulemaking docket for this proposed regulation. Instructions on how to file comments are available in the Notice of Proposed Rulemaking. If readers would like more information about the proposed rule and further steps they can take, here is some more information.