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The U.S. Department of Labor’s Occupational Safety & Health Administration (OSHA) published its controversial final “walkaround” rule on April 1, 2024 (available here). The final rule clarifies the rights of employees to authorize a representative – employee or non-employee – to accompany an OSHA compliance officer (CSHO) during an inspection of their workplace. This can include a “third party” (or non-employee) representative, such as a union representative, if OSHA deems the representative “may be reasonably necessary to the conduct of an effective and thorough inspection based upon skills, knowledge, or experience such as knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills” OSHA argues the authorized employee representative would accompany the CSHO for the purpose of aiding a lawful inspection under the Occupational Safety & Health (OSH) Act.
Commenters raised significant concerns, ranging from First, Fourth, Fifth, and Tenth Amendment violations to due process concerns and issues over allowing a union representative access to a non-union worksite/workplace that some believed could potentially violate the Supreme Court of the United States’ decision in Cedar Point Nursery. With respect to the latter issue, OSHA argues in the final rule: “The circumstances in Cedar Point Nursery are not present in this rule, however. Cedar Point Nursery involved a regulation that granted union organizers an independent right to go onto the employer’s property for purposes of soliciting support for the union for up to three hours per day, 120 days per year. This rule does not. Rather, consistent with section 8(e) of the OSH Act, this rule – like the regulation that has been in effect for more than fifty years – recognizes a limited right for third parties to ‘accompany’ CSHOs during their lawful physical inspection of a workplace solely for the purpose of aiding the agency’s inspection.”
OSHA also concluded the final walkaround rule will not increase employers’ costs or compliance burdens. The final rule will be effective on May 31, 2024.
Not surprisingly, top Republican legislators quickly issued statements in opposition of the final walkaround rule on March 29. House Committee on Education and the Workforce Chair Virginia Foxx (R-North Carolina) stated:
This rule has absolutely nothing to do with keeping workers safe. Rather it weaponizes OSHA inspections—harming workers’ safety while also increasing employers’ costs. This isn’t surprising given this administration’s zeal for regulatory overreach. What’s worse, under this rule unionizing efforts and other activist campaigns are put ahead of safety efforts. So much for OSHA’s vital mission of protecting the health and safety of the nation’s workers. It appears the Biden administration’s only concern is propping up Big Labor’s agenda. Mr. President, workers and job creators hear your message loud and clear.
Senate Committee on Health, Education, Labor, and Pensions (HELP) Committee Ranking Member Bill Cassidy (R-Louisiana) stated:
OSHA inspections are crucial to protect workers’ safety and should never be co-opted to promote a political agenda. The union has a vested interest in harassing a non-union employer. Giving them the power to influence an inspection is a potential weapon against a workplace that has chosen to be non-union. This is wrong.
We expect Republican lawmakers will consider possibly introducing a Congressional Review Act (CRA) measure disapproving of the final rule after they return from their Easter recess break. However, we also note that such a measure would probably not attract enough votes to override a presidential veto. If political channels do not produce successful results, we further expect employers will likely challenge, through litigation, some of the problematic aspects of the final rule that were raised during the public comment period. If interested in further information, Squire Patton Boggs has experienced lawyers with expertise in safety and health, in labor and employment, and in government disputes, that are prepared to help explain the final rule’s impact to your business.
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