OSHA proposes change to walkaround rule

Dive Brief:

• A newly proposed rule from OSHA could mean more eyes on the jobsite during an inspection, and some contractor groups aren’t happy about it. The change proposed Wednesday to the “Representatives of Employers and Employees” regulation would allow an authorized representative to accompany an OSHA compliance officer “when they are reasonably necessary to aid in the inspection” of a worksite, even if they have no involvement with the project.
• That representative would be authorized by employees or a third party such as an employee or union representative, even on non-union jobs. OSHA said the rule change will improve inspections by enabling workers to have representation during safety inspections and making it easier for compliance officers to obtain necessary information about workplace safety.
• Associated Builders and Contractors, which has opposed similar rulings, released a statement against the rule change. “By allowing outside union representatives access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Ben Brubeck, vice president of regulatory, labor and state affairs.

Dive Insight:

While ABC said it will review the proposed rule and assess options for a legal challenge, unions came out in its favor.

“NABTU supports DOL and OSHA ensuring construction workers have safe workplaces including ensuring that our union representatives, who may not be direct employees of the project employer, may accompany and assist OSHA in an inspection,” North America’s Building Trades Union President Sean McGarvey said in a statement shared with Construction Dive.

The potential change would codify how the agency has long interpreted a rule that states a compliance officer can permit an employee representative accompany them, even if the rep. has no direct involvement in the project.

In 2013, OSHA issued an official rule interpretation letter in response to an inquiry, saying a union member could represent employees during a walkaround even without a collective bargaining agreement in place. The National Federation of Independent Business sued OSHA in 2016, saying the letter indicated a new rule without engaging in the rulemaking process.

In 2017, former President Donald Trump’s administration rescinded the interpretation letter.

Now, OSHA is looking to go through that rulemaking process, to fall in line with the manner it had interpreted the rule before, which specifically uses the examples of industrial hygienist or safety engineer as potential walkaround reps.

An increased disruption

Trent Cotney, partner and construction team leader at Tampa, Florida-based law firm Adams and Reese, said contractors worry that employees may select a representative who:

• Is biased and/or uninformed.
• Is disruptive or causes more safety issues.
• Discloses customer information to third parties.
• Brings union presence or interference to a nonunion jobsite.

Carol Sigmond, partner at New York City-based law firm Greenspoon Marder, said she understands why groups like the ABC oppose the rule.

“Management is going to not like having unions and OSHA working together on safety inspections at the local level,” Sigmond said. “These walk-arounds can be disruptive, management tries to control the process [and] the unions want more say and access.”

Employers see OSHA as a safety agency and not a labor one, Sigmond said, and the presence of local unions with their own viewpoints vying for variations opposes one voice from OSHA.

OSHA is accepting comments on the rule change through Oct. 30.