In May 2024, OSHA set the Walkaround Rule into effect. It allows the agency to have third-party representatives accompany inspectors during job site and workplace inspections. This may include union organizers, community activists advocating for worker rights, industry competitors or other vested job safety stakeholders. The rule, however, has created a significant stir among several employers. As a result, it is currently being challenged in a U.S. District Court in Texas.

Upon the announcement of the new regulation, the Department of Labor issued a new release that indicated, “Consistent with OSHA’s historic practice, the rule clarifies that a non-employee 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. These revisions better align OSHA’s regulation with the OSH Act and will enable the agency to conduct more thorough inspections. OSHA regulations require no specific qualifications for employer representatives or for employee representatives who are employees of the employer.”

According to OSHA, the new rule gives the agency the ability to be more thorough in the inspection process and provide greater protection for workers. 

Former Assistant Secretary for Occupational Safety and Health Doug Parker said, “Worker involvement in the inspection process is essential for thorough and effective inspections and making workplaces safer. The Occupational Safety and Health Act gives employers and employees equal opportunity for choosing representation during the OSHA inspection process, and this rule returns us to the fair, balanced approach Congress intended.”

Opposition to the standard

However, many employers oppose the regulation. Opponents see the standard as overreach that compromises their property rights. In response, a coalition of business associations and employers in Texas filed a lawsuit against OSHA. The legal action, Chamber of Commerce of the United States of America, et al. v. OSHA, et al., contends that the Walkaround Rule exceeds the agency’s statutory authority. 

The lawsuit also questions constitutional rights and administrative law principles. The plaintiffs argue that OSHA doesn’t have the statutory authority to implement the Walkaround Rule and don’t believe Congress has provided the agency with the authorization to have unlimited third-party access to workplaces and job sites. They also contend that the regulation infringes on protections provided by the Fifth Amendment by mandating employers permit third-party representatives on their property.

According to Jackson Lewis, a law firm focused on employment and labor law, “The property rights argument echoes a 2021 U.S. Supreme Court decision, in which the high court found a union-­access regulation constituted an unconstitutional taking of the employer’s property. The plaintiffs further claim the rule is arbitrary and capricious and OSHA failed to provide a reasoned explanation for the policy change, did not consider obvious alternatives, and underestimated the rule’s costs. Moreover, the plaintiffs cite the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo as support that OSHA’s general rulemaking authority does not automatically validate a specific rule and that the court must adopt the ‘best reading’ of the statute in question.”

What about the future?

OSHA has argued for dismissal of the lawsuit on lack of standing. It believes potential alleged harm is speculative and not made on solid volition. As a result, its opinion is that the Walkaround Rule is in line with other agency standards and within their authority to conduct effective and necessary job site and workplace inspections. 

OSHA also believes the regulation to be reasonable and does not infringe on private property rights. Furthermore, the agency views the standard as reasonable, clear and within the confines of the law and its authority.

However, this stance may change. Many stakeholders anticipate that the new presidential administration will abandon the government’s defense of the rule. On the other hand, Secretary of Labor Lori Chavez-DeRemer has the support of unions and organized labor groups, which are in favor of the expanded participation permitted in the new rule. The outcome could go either way. 

Regardless, the decision has major implications as it raises fundamental questions about OSHA’s regulatory authority on employers. If the lawsuit is litigated successfully, the decision would likely limit OSHA’s authority to dictate third-party participation in inspections, thereby reducing the regulatory burden on employers. If the rule is upheld, it could pave the way for OSHA to impose future measures that extend its regulatory reach.

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