The Occupational Safety and Health Administration (OSHA) is expected to propose a rule that would allow third-party worker advocates to take part in facility inspections. Workers at nonunion facilities would have the right to designate a representative to take part in OSHA inspections, regardless of whether that representative is an employee.

Further, the proposed rule would clarify the role of representatives at a unionized workplace. It would allow any union representative — such as someone from the national office — to take part in an inspection, not just a union rep employed at the inspected facility.

OSHA is expected to issue a Notice of Proposed Rulemaking in May, opening a public comment period before the rule is finalized. If enacted, the effective date could be sometime in 2024, but it will likely be challenged in court.

Reviving an old rule

The proposed rule would revive a prior policy adopted during the Obama administration. In 2013, OSHA issued a letter of interpretation known as the “Fairfax Memo.”

Per the memo, workers at a company without a collective bargaining agreement could “designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative.”

Critics said that the memo contradicted OSHA’s own regulations, which required the employee representative to be employed by the company being inspected. Further, they argued that the Fairfax Memo was an agency overreach in that it altered guidelines without going through the formal rulemaking process. The Fairfax Memo faced legal challenges and was rescinded in 2017 during the Trump administration.

If the proposed 2023 change is enacted, critics say it will be a boon to union organizers, providing access to facilities where they would generally not be admitted. Meanwhile, proponents say that having a third-party representative on hand could help workers speak more freely and overcome fears of retaliation.

Prepare for OSHA inspections

Strike activity and union organizing is expected to increase in 2023. In light of the current climate and potential rule changes, employers should review their procedures and plans for an OSHA inspection. Consider the following:

Who will serve as a point person during OSHA visits. This person should accompany the inspector throughout the facility and document any photos or tests OSHA makes at the job site.
Whether third-party representatives will be admitted. You have a right to deny an inspection and require OSHA to get a warrant.
Which areas of the facility should be protected as a trade secret. You may choose to deny third-party access to these specific areas. Likewise, any OSHA photographs in these areas should be appropriately labeled as “trade secret.”
If you don’t already have a safety committee in place, consider establishing one. That could increase the likelihood that any designated employee representative would come from your own employee group (i.e., a safety committee chair), rather than an outside party.

Overall, it’s important to know your rights when OSHA arrives to inspect your facility, and to have a response plan in place before you need it.