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Time to Prepare for OSHA’s new “Walkaround Rule”

In a development consistent with President Biden‘s growing reputation as leading the most pro-union administration in history, the Occupational Safety and Health Administration (OSHA) has published a rule allowing employees to select non-employee third parties to be present for — and to participate in — OSHA inspections, commonly referred to as “walkarounds”. The revised Final Rule which is effective May 31, 2024, modifies OSHA’s current practice of only allowing employee representatives to be present during inspections. In announcing its new approach, OSHA expressed its view that the new rule will “better align OSHA’s regulation with the OSH Act and enable the agency to conduct more effective inspections”.

Since opening the door to non-employee representatives is intended to capitalize on outside “knowledge or experience with hazards or conditions in the workplace or similar workplaces”, it is widely expected that union representatives (and organizers) will take advantage of the new rule to gain access to non-union workplaces. And while already unionized workplaces can expect non-employee union officials to be present at their safety inspections, they should also take note that the door is now open to other third-party participants as well.

While employees and employers may file objections to any selected representative, there are no clear standards governing how such protests should be decided. OSHA inspectors have wide discretion to resolve these issues. The rule includes some restrictions on the conduct of “inspection representatives”, including safeguards against disruptions to operations, taking photographs, engaging with employees as to issues unrelated to the inspection and others. But, again, controversies involving these issues will be resolved by the inspector.

Although court challenges are expected, if implemented, employers will not only face the daunting task of complying with OSHA regulations and preparing for potential inspections, they will also have to prepare for a union’s (or other third party’s) involvement in OSHA inspections as well as these third parties’ access to the employer’s workplace and employees in general.