Employer representatives say the Occupational Safety and Health Administration’s recently finalized walkaround rule that allows workers to designate someone from outside a company to participate in safety inspections could open the door for unscrupulous participants. 

Proponents, though, say the change — in the works for several years — will better protect workers when it goes into effect later this month. 

The U.S. Department of Labor in March announced that its final rule clarifying the rights of employees to authorize a representative or representatives to accompany an OSHA compliance officer during an inspection of their workplace was ready to be published in the Federal Register, the final step before implementation. 

The DOL contends the controversial change is “consistent” with federal law and that the Occupational Safety and Health Act gives the employer and employees the right to authorize a “representative,” or nonemployee, to accompany OSHA officials during a workplace inspection. 

For a nonemployee representative to accompany the OSHA compliance officer, they must be “reasonably necessary” to conduct an effective and thorough inspection, according to a statement issued by OSHA.

The agency’s inspectors “have the expertise and judgment necessary to maintain fair and orderly inspections and to determine, on an inspection-by-inspection basis, whether a third party will aid OSHA’s inspection,” an agency spokeswoman said in an email. 

OSHA inspections typically follow a safety-related incident — the agency inspects all incidents involving death — or a whistleblower report of unsafe conditions. Attorneys representing employers say the new rule could be problematic for businesses trying to keep inspections free of disruptions. 

The move is considered pro-union and pro-labor, in line with the current presidential administration, said John Ho, New York-based co-chair of the OSHA Workplace Safety Practice at Cozen O’Connor P.C. 

“Unions use different tactics to try to convince employees they need to protect their rights, and one of them is often safety concerns,” he said. 

“If an inspection comes along, you’ll get a union rep that’s not associated with the employer as this non-party or third-party representative during the walkaround, essentially gathering information to be used against the employer in a union campaign.” 

The American Federation of Government Employees said in a statement that the access will allow the union to participate in safety inspections and represents a “victory for workers.” 

“A national rep who works for AFGE can now be the representative and go on OSHA walkaround inspections. Before it could only be the health and safety officer or rep for the local union,” AFGE health and safety specialist Milly Rodriguez said in a statement. 

“It also means we can go on an inspection of a workplace where we do not yet represent the employees if they select an AFGE representative in an organizing campaign when we are working to represent the workers, for example,” she said. 

But unions aren’t the only parties interested in getting involved in OSHA inspections, according to legal experts (see related story below).

“A lot more third parties have an interest in getting into workplaces during OSHA inspections,” said Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP.

“Plaintiffs attorneys, plaintiffs attorneys’ expert witnesses, disgruntled former employees, family members of an injured employee — all of those folks have tried over the years to get a wedge into the workplace,” he said. “This rule really blows the door open for them to get that kind of access.”

OSHA, though, in a statement announcing that the change would go into effect May 31, said it is “consistent with OSHA’s historic practice, the rule clarifies that a nonemployee representative may be reasonably necessary based upon skills, knowledge or experience.” 

Such expertise 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, the agency said.

The agency spokeswoman further wrote that OSHA gives its inspectors “authority to resolve all disputes about the representative authorized by the employer and employees.”

Language barriers and employee intimidation during inspections are two factors that will be affected by the change, said Jessica Martinez, Los Angeles-based co-executive director of the National Council for Occupational Safety and Health, which supports the change. 

“The purpose is to improve the OSHA inspection process; gathering information from workers directly so that hazards can be identified and eliminated,” she said. “That should be the focus of this discussion, not what supposed liability employers might or might not face in the … inspection process.”

Adding a “trusted representative” will help inspectors get better, more accurate information about unsafe working conditions, she said. 

Employers with cause for concern have an avenue to dispute the presence of a third party during an OSHA inspection, said Andrew C. Brought, a Kansas City, Missouri-based partner with Spencer Fane LLP. 

“If I’m an employer and there’s a request for a third party to accompany the compliance officer, and I don’t believe that there’s a legitimate basis for that, I’m going to be more inclined to challenge that showing and then make them go through the process of getting an administrative warrant” to participate, he said. 

Attorney involvement may lead to more suits

Employers may be more likely to face litigation and a difficult discovery process after an accident when the Occupational Safety and Health Administration’s revised walkaround rule comes into force this month, legal experts say. 

As lawsuits often follow a workplace incident, especially when a worker is killed, plaintiffs attorney participation in an OSHA inspection could create problems for employers, they say.

“Plaintiffs attorneys and their experts want to get involved and gain access shortly after an accident to start to develop their personal injury and wrongful death action against the employer,” said Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP. 

The change makes it easier for them “to get that access that they would never have under the existing rules of civil procedure,” he said. 

Andrew C. Brought, a Kansas City, Missouri-based partner with Spencer Fane LLP, said that risk is real and that employers will need to be better equipped to manage inspections. 

“Companies and employers are going to need to carefully evaluate that there is a legitimate good-faith basis for why this third party has been requested to participate in an inspection,” he said.

The concern caught the attention of lawmakers in South Carolina, who are considering a bill that would “condemn and oppose” the change to federal workplace safety rules. H.R. 5361, introduced April 9, claims that the change infringes on private property rights of employers and violates the U.S. Constitution.