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OSHA walkaround rule is big problem for Missouri businesses

By Ray McCarty, president/CEO, Associated Industries of Missouri

November 13, 2023 - OSHA has filed a regulation change that would allow a person that is not an employee of a company and union personnel (even in non-union workplaces) to accompany OSHA inspectors during an OSHA inspection. Comments on the regulation are due by midnight today!

OSHA is proposing two revisions of the regulation, 29 CFR 1903.8(c). First, OSHA is proposing to clarify that the representative(s) authorized by employees may be an employee of the employer or a third party. Second, OSHA is proposing to clarify that a third-party representative authorized by employees may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience. This proposed revision clarifies that the employees' options for third-party representation during OSHA inspections are not limited to only those individuals with skills and knowledge similar to that of the two examples provided in existing regulatory text: Industrial Hygienist or Safety Engineer.

Associated Industries of Missouri filed comments objecting to the changes last Friday. Here is the text of our letter:

"Associated Industries of Missouri is Missouri’s oldest general business advocacy organization. The Association represents businesses of all sizes and types across Missouri and has done so since 1919. Associated Industries of Missouri appreciates the opportunity to comment on the above-referenced proposed regulation.

The above-referenced proposed regulation changes seek to redefine the worker walkaround representative designation process in a way that will yield negative consequences for Missouri businesses. We are opposed to these proposed changes and believe the proposed changes are neither reasonable nor necessary to promote safety or health in the workplace and, in fact, could result in creating additional safety and liability issues by allowing additional unauthorized parties access to workplaces.

On February 21, 2013, OSHA issued a letter of interpretation authored by then Obama-era OSHA Deputy Assistant Secretary Richard Fairfax (the Fairfax Memo) in response to questions posed by the United Steelworkers of America. The Fairfax Memo unilaterally permitted union representatives or other third parties to accompany OSHA inspectors during onsite inspections even if the worksite was non-union and the “representative” was not an employee of the employer. This interpretation expanded who could accompany an OSHA inspector on a walkaround from “industrial hygienist or safety engineer” as defined by the OSH Act, to unions, community organizations, and virtually anyone else acting on behalf of employees.

The National Federation of Independent Businesses sued OSHA in federal district court alleging that the Fairfax Memo’s interpretation of the OSH Act amounted to a legislative rule adopted without notice and comment as required by the Administrative Procedures Act of 1946.

OSHA moved to dismiss the lawsuit, but the court found that the NFIB had stated a claim upon which relief could be granted. President Trump was sworn into office before resolution of the lawsuit, however, and on April 25, 2017, the Trump administration formally rescinded the guidance set forth in the Fairfax Memo; the NFIB withdrew its lawsuit.

The Executive Summary of RIN 1218-AD45 states, in part, “On February 3, 2017, the district court concluded that OSHA’s interpretation … was not consistent with 29 CFR 1903.8(c) and such a change to a regulation could not be made without notice and comment rulemaking. The district court held that the letter ‘plainly contradicts § 1903.8(c)’s requirement that the employee representative be an employee himself.”

OSHA is now attempting to use the rulemaking procedure to legitimize its position that unions and other third-party representatives may accompany employees during OSHA inspections, even if the workers are not represented by a union.

Title 29, Section 657, sets forth parameters for OSHA inspections and allows an “authorized employee representative” to accompany the OSHA inspector during a physical inspection, “for the purpose of aiding such inspection.” This federal law contains two requirements: that the accompanying person be an “authorized employee representative” and that the presence of the accompanying person must aid in the inspection.

The term “authorized employee representative” is defined by OSHA regulation standard number 2200.1(g). That standard states, “Authorized employee representative means a labor organization that has a collective bargaining relationship with the cited employer and that represents affected employees who are members of the collective bargaining unit.” This would require the representative to be a member of a labor organization in the workplace where employees have established a union that represents employees in a collective bargaining unit. A workplace where employees are not represented by a union would not have an “authorized employee representative” as defined by OSHA’s regulation standard. To the contrary, the regulation change describes the intent of the regulation change is to allow any third party to accompany an OSHA inspector, whether the employees are represented by a union or not, creating a disparity between the new proposed regulation and OSHA’s own regulation standard.

We also note that the statute limits the person accompanying the inspector to a person that will “aid in the inspection” yet the regulation change does not require the person to have any qualifications at all. If a person is to aid in the inspection of a facility and be granted access to a workplace, federal law requires such a person to be qualified to aid in the inspection – not simply be an observer. If the accompanying person has no credentials or expertise that would aid in the investigation, they are not granted the privilege of accompanying the inspector under federal law. If OSHA seeks to allow uninterested third parties without any qualifications to accompany their inspectors, they must seek a statute change and may not simply make it so by promulgating a regulation that directly conflicts with the statute.

The current regulation admits this fact by allowing a person “such as an industrial hygienist or a safety engineer” only if it “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” In practice, only those with technical expertise and credentials, or perhaps a unique language interpreter, have been permitted to accompany an OSHA inspector on an inspection under the current regulation.

The proposed rule change eliminates the requisite technical credentials when stating that a third-party representative may be “reasonably necessary” simply because of “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.”

These changes do not make the workplace safer or healthier. They simply remove any qualifying barriers to otherwise unauthorized access to a worksite in violation of federal law. The Notice of Proposed Rulemaking admits this when it states, “In OSHA’s experience, there are a multitude of third parties who might serve as representatives authorized by employees for purposes of the OSHA walkaround inspection.” The proposed regulation cites examples of worker advocacy organizations, labor organization representatives, consultants, and attorneys who are experienced in interacting with government officials or have relevant cultural competencies as those that may be authorized by employees to represent them on walkaround inspections.

Permitting just about anyone to accompany an OSHA inspection would convert the

inspection from being focused on workplace safety to being an organizing tact for unions, a litigation strategy for attorneys, and an opportunity to harass employers and/or employees.

Employers desire, and are required, to provide a safe and secure workplace for employees. Controlling access to a facility is one such protection. The government may only override the right of an employer to control the work environment in very limited circumstances, such as improving workplace safety and investigating incidents that may indicate a violation of federal law. Any government override of employers’ controls that are in place to protect employees and the company from unauthorized access must be used judiciously by the government. This regulation runs roughshod over the plain intent of federal law and should not be advanced. Promulgating this regulation will lead to expensive litigation and harassment of employers and we respectfully ask you to withdraw the regulation change."

We will keep you posted of any developments regarding this troubling regulation change. The comment process if very easy to use and you may write as much or as little as you wish, but the comments must be received by the end of today. We are so sorry for the short notice, but we were alerted to this very late!

Here is a link to the current unmodified rule. And here is a link to the summary of the proposed regulation change (use the green link to "SUBMIT A FORMAL COMMENT").



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