An attorney for employers says he anticipates that OSHA will soon finalize its controversial rule to allow representatives to take part in enforcement “walkaround” inspections even if they are not employed at the site, after the regulation sped through White House review -- a move he says is almost guaranteed to bring immediate court challenges.
“The agency is free to issue this final rule at any moment, and that's my expectation,” Eric Conn, founder and chair of the OSHA Workplace Safety Practice Group at the law firm Conn Maciel Carey, told Inside OSHA on March 21 -- the day after the White House Office of Management and Budget (OMB) concluded its review of the policy.
That process lasted just over a month -- unusually short for OMB, which generally holds agency rules for about 90 days if not more, though that target is non-binding. OSHA has similarly moved quickly to develop the final policy; it floated the proposal on Aug. 30, meaning the full rulemaking process will have taken under a year, when the agency has often struggled to complete major rules in a single presidential term.
Given the short amount of time between its proposal, public comments and the OMB review, Conn said the rule is unlikely to have gone through any major changes.
“I think our expectation is that we're going to see this issued any day now, which makes it hard to imagine that there's been much opportunity for the agency to make changes to the text,” he said.
But he added that if OSHA does take that path, it is all but certain to face lawsuits from a wide range of employers who have already attacked the proposed version as “unconstitutional,” at odds with the OSH Act provisions governing worker representatives’ role in enforcement, and self-contradictory.
“You can expect to see legal challenges to this rule. There’s enough obvious legal defects with the rule and the rulemaking process, that. . . . I think I will say in this instance [there will almost] certainly be legal challenges to this rule if it is issued in its current form,” he said.
Even if OSHA sought to tailor the rule somewhat in response to those critiques, “It's really hard to imagine how they could fix some of the defects in a way they would not face legal challenges, that's one thing that you can expect to see very quickly after the rule is issued,” he said.
The walkaround rule aims to revive a controversial Obama-era policy allowing non-employee representatives to participate in inspections “if, in the judgment of the Compliance Safety and Health Officer [CSHO], good cause has been shown why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”
It has faced harsh opposition from Republicans and employer groups who see it as a way to force companies with non-union workforces to allow union representatives to participate in inspections.
For example, Ed Egee, vice president of government relations and workforce development at the National Retail Federation (NRF) previously told Inside OSHA that his group used a Feb. 22 OMB meeting to warn the White House that the rule “has nothing to do with workplace safety,” and instead seeks to provide union access to workplaces.
But unions and their allies have defended the proposal, arguing that it will bolster workers’ rights while making OSHA site visits more effective.
‘Muck Up The OSHA Inspection Process’
In addition to the legal arguments against OSHA’s new interpretation of the OSH Act’s walkaround provisions, Conn said the rule could cause several practical problems for the agency and employers that would greatly complicate inspections.
For example, he said it could allow people with an interest in disrupting operations at a work site, such as “disgruntled former employees,” plaintiffs’ attorneys, family members of injured employees, among others, access to facilities, and that their influence on OSHA compliance officers “could result in flawed enforcement,” either inadvertently or because they would deliberately try to disrupt operations.
“The real big impact of this rule is going to be all these other third parties that are going to try to get in the door and muck up the OSHA inspection process . . . to no benefit to OSHA [and] to no benefit to the OSHA inspection process, purely for personal benefit of those that are trying to get that access. Unless OSHA has revisited the regulatory text, that is the great concern here,” he said.
A third party could “use this rule to get access to the workplace and to go along with OSHA during the inspection,” and could attempt to “mislead[] the compliance officer, encourage[] current employees to lie and mislead the compliance officer out of anger and retribution against the employer.”
Conn emphasized that employers would be much more likely to “refuse to consent to an OSHA inspection” if the CSHO brings a third-party representative -- which could require the agency to seek a warrant for the walkaround, which itself could be open to legal challenges.
Currently, he said, it is “extremely rare” for an employer to demand a warrant. But now, “our clients are not going to allow these third parties in without intervention by a court. It is a resource suck for OSHA to have to go and get warrants and fight legal battles about access to workplaces. And they're going to have to do that,” he said.
If employers challenge agency warrants, “it will suck up a lot of OSHA’s time, it's going to delay the start of OSHA inspections considerably, and reduce the number of inspections that OSHA is able to conduct because of all the resources that will be spent on these challenges.” -- Sarah Mattalian (smattalian@iwpnews.com)