On April 30, 2024, The Department of Labor (DOL) and Occupational Safety and Health Administration (OSHA) issued a final rule amending its “Representatives of Employers and Employees” regulation to clarify that employees can authorize a third-party employee representative to accompany an OSHA Compliance Safety and Health Officer (CSHO) during a workplace inspection, commonly referred to as a “walkaround.” The third-party representative must be deemed “reasonably necessary” by the CSHO to assist during the inspection. In the final rule, OSHA also clarified that a third party may be reasonably necessary because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.
Prior regulations permitted “a third party who is not an employee of the employer” to accompany the CSHO during a physical workplace inspection but limited those individuals to those with skills and knowledge similar to two examples provided in the regulatory text: industrial hygienist or safety engineer. The final revision clarified that options for third party representatives are not limited to those two examples.
The final rule restores an Obama-era guidance from 2013, referred to as the “walk-around letter,” which clarified that employees at a worksite without a collective bargaining agreement could designate individuals affiliated with a union or community organization to act as a third-party walkaround representative. The Trump administration revoked the policy in 2017.
The rule went into effect on May 31, 2024.
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The final rule received immediate backlash from members of Congress and business groups. A week before the rule was implemented, the U.S. Chamber of Commerce, along with other business groups, filed a lawsuit in the Western District of Texas, alleging that regulation exceeds OSHA’s legal authority and violates employers’ property rights under the Fifth Amendment. The plaintiffs sought injunctive relief.
While the judge in the case did not issue an injunction to block the final rule from going into effect, the rule could still be vacated. In 2021, the Supreme Court of the United States ruled in Cedar Point Nursery v. Hassis that a California regulation permitting union organizers the right to access agricultural employees at employer worksites constitutes a per se physical taking. The Fifth Amendment’s “takings clause,” which applies to states under the Fourteenth Amendment, prohibits the government from taking private property for public use “without just compensation.” There are two types of takings: physical appropriations of land and imposition of regulations that restrict the landowner’s ability to use the land. The Supreme Court deemed that in the case of the California regulation, granting labor organizations a “right to take access” to an agricultural employer’s property constituted a physical taking. The Cedar Point decision could shape the Court’s ruling in Chamber of Commerce v. OSHA.
Most recently, NCA signed onto a May 17 Coalition for Workplace Safety-led letter of support for U.S. Representative Mary Miller’s (R-IA) Congressional Review Act (CRA) resolution to nullify the final walkaround rule.
Contact NCA President & CEO Joe Trauger at [email protected]g if you have any questions or comments.