OSHA Walkaround Rule Is Challenged In Federal Court

As Connecting the Dots  reported at the time, in late March the U.S. Department of Labor finalized a regulation that expands the list of people who can authorized by employees to act as their representative during physical Occupational Safety and Health Administration (OSHA) workplace inspections.

The rule is set to take effect May 31, 2024.

In an attempt to stop that from happening, the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Federation of Independent Business, and other business trade organizations filed a lawsuit challenging the regulation. The groups argued the rule is beyond the scope of OSHA’s authority and would violate businesses’ rights.

As readers may recall, the final rule clarifies that a worker may authorize another employee (known as an “employee representative”) to represent them during OSHA inspections — and, under certain circumstances, may even select a non-employee. The regulation does not require any specific qualifications for employee representatives who may act as designees, but for a non-employee representative to accompany the OHSA compliance officer in a workplace, that person must have enough experience to be “reasonably” able to conduct an “effective and thorough inspection.” This experience, the DOL said, “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.”

Unfortunately, despite the allowance of non-employee representatives, the rule does not provide clarity for how OSHA safety and health officers are supposed to determine if a chosen representative actually should be allowed to participate in the inspection. The DOL also offered no limit for the number of representatives who could participate in an inspection. As a result, OSHA inspectors will be forced into a position to police these representatives’ behavior, which could include intentionally disrupting the workplace and instigating dysfunction.