WASHINGTON — Calling it an “overreach of OSH Act authority,” a broad industry coalition said a proposed rule by the Occupational Safety and Health Administration (OSHA) has irreparable shortcomings in protecting employer rights and ensuring workplace safety and should be abandoned.

Urging OSHA to concentrate on promoting workplace safety, the group, which includes the American Bakers Association (ABA) and SNAC International, warned the rule would likely impede rather than enhance safety inspections.

The coalition’s views were submitted in a Nov. 13 letter to OSHA. The group said a proposed change to allow more third parties to enter an employer’s worksite and accompany CSHOs (certified safety and health officials) on inspections would undermine OSHA’s credibility as a neutral enforcement agency, discourage employer cooperation with workplace safety inspections and dismiss employer property rights.

The letter was written in response to an OSHA proposal published in the Aug. 30 Federal Register.  In the “Notice of Proposed Rulemaking (NPRM) on ‘Worker Walkaround Representative Designation Process,’” OSHA proposed amending its representatives of employers and employees regulation to allow a third-party employee representative to accompany CSHOs during OSHA inspections.

Citing the Occupational Safety and Health Act, signed into law in 1970, OSHA said the act allows that, “subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by its employees shall be given an opportunity to accompany (the CSHO) for the purpose of aiding such inspection.”

In the past, OSHA said it had interpreted the regulation to “permit third-party representatives authorized by employees to accompany OSHA on the walkaround inspection when reasonably necessary to conduct an effective and thorough physical inspection of the workplace.”

Because of a 2016 court ruling that this interpretation was not consistent with the regulation, OSHA said it was proposing a revision to the rules about the types of individuals who may represent employees during the physical inspections of the workplace (known as “walkaround inspections”).

In its proposed rule, OSHA would allow that the representative authorized by the employees may be an employee of the employer or a third party, and that the third-party representative authorized by employees “may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience.”

Of particular concern to the coalition is an interpretation by OSHA that workers at a workplace 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.”

The group said the proposed rule would open the door for “third parties with ulterior motives to take advantage of OSHA’s legitimate enforcement processes to further their related interests, which very likely could be hostile to the employer.”

The letter represents the view of a diverse coalition of groups ranging from the Air Conditioning Contractors of America to the Water and Sewer Distributors of America and includes The US Chamber of Commerce as well as numerous food related groups. Among associations in the latter category were the ABA, FMI—The Food Industry Association, the International Dairy Foods Association, the National Grocers Association, the North American Meat Institute and SNAC International.

The letter cited several major issues the coalition takes with the proposed rule, concluding that the rule ultimately “fails to improve workplace safety and undermines OSHA’s credibility by imposing workplace access to otherwise uninvited third parties.”

Enumerating its objections to the proposal, the coalition said the rule goes afoul of a provision in the OSH Act that inspections must place a “minimum burden on employers.” The proposed change is not consistent with an OSH Act regulation requiring that an employee-authorized representative for an inspection should serve the purpose of “aiding such inspection,” the coalition said.

Noting that the US Supreme Court in 2022 struck down OSHA’s vax-or-test rule for COVID-19, the coalition cited the court’s conclusion that OSHA standards “must be reasonably necessary or appropriate to provide safe or healthful employment.”

The coalition continued, “the proposed rule similarly exceeds OSHA’s statutory authority because it is not tailored to serve interests of workplace safety.”

The proposed rule is seen in the CWS letter and a second letter submitted by FMI as creating additional complexities for OSHA, forcing the agency to navigate issues related to trade secrets, third-party access, and potential legal disputes. FMI and its member companies voiced concerns surrounding the security and safety of proprietary business information, and union access to non-union facilities.

They also said the proposed rule is “blatantly ambiguous as to the justification for enabling a third-party individual or group(s) of individuals to access a facility simply because a CSHO has deemed them to be ‘reasonably necessary to conduct an effective and thorough inspection.”

“The NPRM is silent on verifying the validity of a third-party individual or group(s) of individuals’ background or qualifications for accessing a secure goods production facility beyond being selected by an employee to accompany a CSHO,” the FMI said.

Employees would bear the burden to show “good cause” for the inclusion of the third party, according to the letter.

The AFL-CIO, representing 60 national unions and 12.5 million workers, submitted comments in support of the proposed rule, alternately arguing that the “reasonably necessary” restriction imposes unequal burdens on employees and is thereby inconsistent with the OSH Act.

Their letter also stated that workers “may” designate individuals with “specific, relevant, safety and health experience to act as third-party representatives.” They stated that “workers may choose a representative who has deep familiarity with the OSHA investigation process” and “may choose a representative that both understands their language and has cultural competency and the trust of the workers to help them understand the investigation process.”

The language skills of these representatives, particularly when dealing with diverse workforces, are highlighted in the letter as a central factor in facilitating effective communication during inspections.

Embracing the proposed rule, the union said allowing workers to select their representative for walkaround inspections would enhance the safety and health of workers.

“State OSHA plans must also adopt this federal rule without delay and within the timeframe they are required to under the law,” the AFL-CIO said.

The CWS letter, meanwhile, expressed alarm that the proposed rule does not place any guardrails on choosing the third-party representative, and noted a discrepancy between OSHA’s interpretation of the term “authorized employee representative” and the Department of Labor’s definition of the same term and explains how this misuse of the term could infringe on employees’ rights to reject collective representation.

The proposed rule’s expansion of “authorized employee representative” infringes on employees’ rights to reject collective representation as granted by the National Labor Relations Act (NLRA), according to the letter.

Broadening the definition of representatives who may accompany CSHOs during inspections would potentially allow individuals with insufficient qualifications to participate, the letter also stated.

Another major concern expressed by the coalition is the proposed change’s impact on employer trade secrets. While OSHA has asserted its commitment to maintaining trade secret protections, the letter noted that the proposed rule’s practical implementation may conflict with existing regulations. The potential conflict arises from scenarios where employers protect their entire method of production as a trade secret, raising questions about how OSHA will navigate such situations.

The proposed rule conflicts with the NLRA, lacks the necessary structure to determine qualified representatives, and fails to account for employees’ right to reject representation, the letter stated.

The proposed rule also is criticized for increasing liability risks for employers. The presence of third-party representatives during inspections introduces the possibility of accidents, such as slips and falls, leading to costly lawsuits, the coalition said. Specific industries, like those involved in manufacturing sensitive products, may face challenges in maintaining site access controls, and the proposed rule does not adequately address these concerns, according to the letter.

FMI expressed similar concerns, sharing that “allowing an unknowledgeable third-party representative to accompany a CSHO during an OSHA-inspection could create serious food safety hazards in both food production and warehouse,” according to the FMI letter.

“Any third party could introduce new hazards into a facility,” they said. “The amount of unauthorized people should be limited in a facility.”

Responding to a claim by OSHA Assistant Secretary Douglas Parker that the proposed rule was “effective and practical” and would encourage greater worker participation in the OSHA project, the coalition disputed all three claims.

Calling it “anything but practical,” the group said it offers no guidance on who qualifies as an authorized representative of employees and offers an avenue for “vocal minorities” to push actual workers out of the walkaround process.

“Because the proposed rule fails to improve workplace safety and undermines OSHA’s credibility by imposing workplace access to otherwise uninvited third parties, CWS strongly opposes the rule and urges OSHA to withdraw it,” the coalition said.