Under certain circumstances, an OSHA officer may visit an employer’s site to conduct a mandatory inspection.
Prompts for such an activity include worker complaints, severe incidents, or a follow-up to a previous inspection. But an inspection can be requested for any reason at all.
The employer has a right to request an inspection warrant (which will be provided and is sometimes sought in advance) but cannot decline the inspection itself without legal consequence.
The Compliance Safety and Health Officer (CSHO) has to follow specific protocols, such as producing a warrant (where requested), presenting their credentials (in all cases), and conducting a closing conference. They may issue citations and penalties based on what they find and typically don’t announce when they are coming.
All of this is laid out in OSHA’s Field Operations Manual (FOM), which is pursuant to the regulations themselves.
What Are the Proposed Changes to OSHA’s Worker Walkaround Rule?
Section 8 of the Occupational Safety and Health Act has been in force since its introduction in 1970, and the inspection rules have been basically unchanged since then. Recently, however, a proposed change has been put on the table that has some employers and their lawyers up in arms.
The major debate comes down to the clarification of a few words in a subsection on inspections and representatives. Researching this has been interesting, because depending on the source I’m reading, the purported meaning, implications, and specific emphasis of the change is totally different.
OSHA’s proposed changes to the Worker Walkaround Representative Designation Process Rule – an amendment to 29 CFR § 1903.8(c) – seemingly expands upon the definition of who may accompany the OSHA inspector on a site inspection by removing the example definitions (Industrial Hygienist and Safety Engineer) and emphasizing that the representative can be an employee or not. The change updates the original language of the clause (which has remained unchanged since 1971) to clearly authorize the invitation of non-employee third parties, designated by employees, to accompany an OSHA inspector in an inspection of a workplace if their input provides expertise and is “reasonably necessary” in the opinion of the CHSO.
The proposed change, however, goes beyond the original interpretation to include any generic third party designated by employees and agreed upon by the CHSO – at least, that understanding is the source of the debate.
Why Are Employers Worried About This Proposed Update?
The meaning and interpretation of the section has been challenged before. Letters of interpretation, such as the so-called “Sallman Letter” issued in February 2013, sought to clarify the ambiguous language of the section by specifically stating that a union-affiliated third party could accompany the CHSO on an inspection instead of an employee. That reading was challenged by the National Federation of Independent Business (NFIB), arguing that such a change couldn’t be made without a proper notice and comment rulemaking process. It was seen as OSHA overstepping its authority and coming into conflict with National Labor Relations Board (NLRB) regulations.
Despite a district court decision partially in their favor, OSHA rescinded the letter in 2017 and quietly removed the associated language from the inspector’s field operations manual that specifically stated union reps can accompany inspectors in a non-union workplace.
The lack of specificity in the proposed wording has ruffled some feathers once again. Employers fear that it would open a major loophole that could harm their businesses.
Most objections to the proposed rules seem to be aligned with the worry that it would allow union interlopers to intrude into non-union workplaces with the goal of organizing employees. However, it isn’t the case (and never was) that any random individual could gain access. It must be a third party designated by the employees and agreed upon by the CHSO. The latter has ultimate authority to exclude anyone who wasn’t “reasonably necessary” or who might disrupt or impair the inspection process. The proposed change doesn’t include any specific language in reference to unions.
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What the Changes to the Rule Will (Probably) Mean
The original language of the clause merely provided examples of specialists whose accompaniment might provide value, such as an industrial hygienist or safety engineer. This language is now being broadened to include any individual who may help perform the inspection effectively.
It would take a very intentional misreading to interpret the original wording as a limitation to those two example roles – it always broadly included any third party, and the new wording simply makes that more explicit. The new guidance will include other parties who are not necessarily technical subject matter experts but may otherwise aid the process. An interpreter, for example.
OSHA inspection guidelines are stringent in terms of what an inspector can or must do, and what things that are prohibited. By contrast, the third parties in question aren’t encumbered by any such rules. The regulation, for example, doesn’t preclude third parties from handing out documentation, speaking to employees, or snapping pictures at a worksite.
We could concoct all kinds of scenarios about how this change could be misused and how it could open the door to unions, protestors, environmental groups, disgruntled employees, lawyers representing injured employees, and other external parties with vested interests. However, an employer may request justification for why a third party is being included, and exercise their right to request a warrant if they feel it is unjustified. At which point, it’s up to the CHSO to convince the court that the third party is necessary to the inspection process.
The alarm is nevertheless sounding over the tidal wave of union activity that is supposedly coming in the wake of this change. However, during the four-year period during which the Sallman Letter was issued, specifically endorsing union reps on the walkalong, the expected deluge of union complaints and attempts to join inspections wasn’t significant. Only about four or five apparent instances of this took place, all said.
Employers Are Right to Raise Concerns
The discourse over the change is incredibly nuanced and zoomed-in. Again, there are tens of thousands of words written on the topic, but the change itself amounts to a rewording of a very short section to clarify what was already included, and always has been.
The reaction is probably overblown in general, but it isn’t totally without merit. The proposed change leaves the ultimate authority with the CHSO whether to include the party or not, but there are no criteria for how they are to decide what is “reasonably necessary.”
Vagueness in regulation is always contentious. Employers are right to ask for better qualification of what the wording really means, so they can protect themselves and their businesses.
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