On March 29, 2024, the Department of Labor Occupational Safety and Health Administration (“OSHA”) released a final rule amending the Occupational Safety and Health Act of 1970 (“OSH Act”), clarifying who can serve as an employee representative to accompany the OSHA Compliance Safety and Health Officer (“CSHO”) during physical workplace inspections.  The final rule broadens employees’ rights to allow outside representatives – including labor union representatives – to join them during safety inspections.  The final rule is set to take effect May 31, 2024.

Background

The OSH Act requires that both employer and employee representatives have the opportunity to accompany the CSHO during the physical inspection of a workplace – referred to as a “walkaround rule.” 

Under the current rule, the OSH Act provided that the employee representative be limited to “employee(s) of the employer,” but there was also an exception for a “third party who is not an employee of the employer” authorized by judgment of the CSHO to be “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” The OSH Act listed a safety engineer and an industrial hygienist as two non-exhaustive examples of authorized third-party employee representatives.

While OSHA interpreted the above-language to permit third-parties, including labor union representatives, to join employees during the inspections, a federal district court in 2017 issued a holding interpreting the language in a narrow fashion.  A Texas federal judge found that only employees of the employer can participate in these inspections. 

OSHA Final Rule

The final rule amends the OSH Act to state that, “[t]he representative(s) authorized by employees may be an employee of the employer or a third party.”

The new language clarifies that employees are permitted to bring in outside representatives to accompany OSHA inspectors during the physical inspection of the workplace. The final rule does not change the CSHO’s authority to determine whether good cause has been shown why a third-party representative is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” However, it does expand authorized third parties to include anyone with “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills” – rather than only those with skills comparable to a safety engineer or industrial hygienist. OSHA concluded that “these clarifications aid OSHA’s workplace inspections by better enabling employees to select representative(s) of their choice,” thus “…ensuring OSHA obtains the necessary information about worksite conditions and hazards.”

Takeaways

It bears watching whether the final rule will be challenged in federal court, as many other recent agency rule pronouncements – particularly by the National Labor Relations Board (here) – have been challenged.  If the rule survives challenge (or if it is not challenged at all), then employers should be aware of the upcoming change in the law in less than 60 days, which will broaden employees’ rights during safety inspection reviews, and which may provide union access rights to the workplace that may not have previously been available under labor law or applicable collective bargaining agreements. 

We will continue following this issue closely. 

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is an associate in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major…

Joshua S. Fox is an associate in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh assisted with the successful representation of the Toronto Blue Jays in their case against All-Star Josh Donaldson, which was the largest club victory in salary arbitration in recent years. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations, as well as similar claims brought on behalf of scouts. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in nearly all industries, including multi-unit, multi-location, multi-employer and multi-union bargaining.

Photo of Laura Fant Laura Fant

As an associate in the Labor & Employment Law Department and co-chair of the Disability, Accommodations & Leave Management Practice Group, Laura Fant frequently counsels on employee leave and accommodation matters involving the Americans with Disabilities Act, the Family and Medical Leave Act…

As an associate in the Labor & Employment Law Department and co-chair of the Disability, Accommodations & Leave Management Practice Group, Laura Fant frequently counsels on employee leave and accommodation matters involving the Americans with Disabilities Act, the Family and Medical Leave Act and related state and local laws. She also provides general employment counseling and has experience reviewing and updating employee handbooks and company policies, as well as providing training on topics such as discrimination and harassment in the workplace, social media, and the accommodation of physical and mental disabilities. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog.

Before joining the Firm, Laura was assistant general counsel to the City of New York’s Office of Labor Relations. Prior to that, she was law clerk to Judge Jose L. Fuentes of the New Jersey Superior Court, Appellate Division, and a judicial intern to Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York.

Chad Thornton

Chad Thornton is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Counseling Group.