Key Takeaways

• Biden administration poised to revive Obama-era rule permitting outsiders to accompany OSHA during inspections
• Proposed rule would allow nonunionized workforces to designate representatives to participate in OSHA inspections, subject only to the compliance officer’s broad discretion
• Regulated community should be cognizant that outsiders could have the legal right to participate in an OSHA inspection of their facility as soon as next year
• With this rule, Biden administration aims to provide pro-union advocates with one more tool to deploy in organizing campaigns

In January 2023, the Occupational Safety and Health Administration (OSHA) revived a rule that would permit worker-designated representatives to accompany OSHA during the inspection process, regardless of whether the representative is an employee of the workplace being inspected. In other words, under the proposed rule, individuals who do not even work at the inspected workplace could participate in the OSHA inspection at the invitation of a potential union. Workplaces that are not yet unionized should therefore anticipate a scenario where outside organizers accompany OSHA during its walk-around, working in tandem to point out alleged safety and health hazards at the facility. 

The proposed rule aims to renew a controversial Obama-era policy that ended in 2017 during the Trump administration when OSHA rescinded the rule amidst legal challenges. As proposed, the rule would have two key impacts. First, it would “clarify” the role of union representatives, many of whom are union staff members and not employees of the workplace, during inspections. This change would affect work sites that are already unionized and allow that union to designate someone who is not employed at the inspected facility—such as a representative from the union’s national office—to accompany OSHA during the inspection. Second, and more divisively, the proposed rule would enable nonunionized workforces to designate union representatives to participate in OSHA inspections, subject only to the requirement that the compliance officer deems the representative’s presence “reasonably necessary to an effective and thorough physical inspection.” While OSHA does not yet provide clear guidance on who is “reasonably necessary” to an inspection, we expect this phrase to be interpreted liberally and that compliance officers will frequently permit a designated representative to participate. Bottom line, OSHA did not revive a rule allowing nonemployees to participate in the OSHA inspection only to have its compliance officers determine that their participation is unnecessary.

Proponents of the policy believe that allowing worker-designated representatives to participate in OSHA inspections helps mitigate employees’ fear of retaliation when they report hazards, because workers are able to relate to and speak more freely with a worker-designated representative than they are with an OSHA investigator. Critics, however, denounce the policy as creating a back door to unionization outside the bargaining process by granting access to nonunion workforces that union organizers would not otherwise have.

Additionally, both sides have raised concerns about conditioning participation exclusively on the judgment of the OSHA inspector, who would determine whether the representative’s presence is “reasonably necessary to an effective and thorough physical inspection.” Richard Fairfax, the former OSHA deputy assistant secretary, who signed a 2013 interpretation letter on the Obama-era policy (the now-defunct “Fairfax Memo”), said he is concerned about the pressure the proposed rule could put on inspectors. Although the “reasonably necessary” standard mirrors language from the Fairfax Memo, interested parties remain apprehensive that endowing inspectors with discretionary authority to apply (or not apply) such a politically charged rule could create fertile ground for abuse, intimidation, or other means of influencing inspectors’ decisions.

OSHA aims to publish a Notice of Proposed Rulemaking in May 2023, likely pushing any effective date until 2024 or later. The rule will impact employees and employers alike and is expected to further support the Biden administration’s stated union-friendly platform. While employers are likely to challenge OSHA’s proposed rule on the grounds that it exceeds OSHA’s statutory authority, the regulated community should be aware that outsiders could have the legal right to participate in an OSHA inspection of their facility as soon as next year. Employers are already experiencing a resurgence in strike activity and union organizing in 2023, and this trend only seems poised to continue if the Biden administration adds the OSHA inspection to the union advocate’s toolbox.

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