The U.S. Department of Labor’s Occupational Safety & Health Administration (OSHA) published its controversial final “walkaround” rule on April 1, 2024. The final rule clarifies the rights of employees to authorize a representative – employee or non-employee – to accompany an OSHA compliance officer (CSHO) during an inspection of their workplace. This can include a “third party” (or non-employee) representative, such as a union representative, if OSHA deems the representative “may be reasonably necessary to the conduct of an effective and thorough inspection based upon skills, knowledge, or experience such as knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills” OSHA argues the authorized employee representative would accompany the CSHO for the purpose of aiding a lawful inspection under the Occupational Safety & Health (OSH) Act.
Commenters raised significant concerns, ranging from First, Fourth, Fifth, and Tenth Amendment violations to due process concerns and issues over allowing a union representative access to a non-union worksite/workplace that some believed could potentially violate the Supreme Court of the United States’ decision in Cedar Point Nursery. With respect to the latter issue, OSHA argues in the final rule:
