The U.S. Department of Labor announced a final rule clarifying the rights of employees to authorize a representative to accompany an Occupational Safety and Health Administration compliance officer during an inspection of their workplace will be published in the Federal Register on April 1. The rule is effective on May 31, 2024.

The Occupational Safety and Health Act gives the employer and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection. The final rule clarifies that, consistent with the law, workers may authorize another employee to serve as their representative or select a non-employee.

For a non-employee representative to accompany the compliance officer in a workplace, they must be reasonably necessary to conduct an effective and thorough inspection.

Consistent with OSHA’s historic practice, the rule clarifies that a non-employee representative may be reasonably necessary based upon skills, knowledge or experience. This experience may include knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills to ensure an effective and thorough inspection. These revisions better align OSHA’s regulation with the OSH Act and enable the agency to conduct more effective inspections. OSHA regulations require no specific qualifications for employer representatives or for employee representatives who are employed by the employer.

The rule is in part a response to a 2017 court decision ruling the agency’s existing regulation, 29 CFR 1903.8(c), only permitted employees of the employer to be authorized as representatives. However, the court acknowledged that the OSH Act does not limit who can serve as an employee representative and that OSHA’s historic practice was a “persuasive and valid construction” of the OSH Act. The final rule is the culmination of notice and comment rulemaking that clarifies OSHA’s inspection regulation and aligns with OSHA’s longstanding construction of the act.

“Worker involvement in the inspection process is essential for thorough and effective inspections and making workplaces safer,” said Assistant Secretary for Occupational Safety and Health Doug Parker. “The Occupational Safety and Health Act gives employers and employees equal opportunity for choosing representation during the OSHA inspection process, and this rule returns us to the fair, balanced approach Congress intended.”

The Workforce Committee Chairwoman Virginia Foxx (R-NC) issued a statement on the Department of Labor’s (DOL) final Walkaround Rule. “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,” said Dr. Cassidy. “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.”

Greg Sizemore, Associated Builders and Contractors vice president of health, safety, environment and workforce development said: “There simply is no business case for this final rule and no benefit during a compliance inspection.”

“By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Sizemore. “This final rule negatively impacts the rights of employers while simultaneously ignoring the rights of the majority of employees who have not authorized a union to represent them. OSHA’s rule also poses unnecessary risk to the individual joining the inspection and others on the jobsite if the authorized person is not trained to safely walk a construction jobsite.”