Seyfarth Synopsis: Numerous business groups led by the U.S. Chamber of Commerce sued the Occupational Safety and Health Administration over the Agency’s new walkaround rule. The suit, Civil Action No. 24-271, was filed last week in federal court in the Western District of Texas, challenging the legality of the recent regulation that expanded workers’ rights to bring in outside representatives during OSHA safety and health inspections.

The new OSHA walkaround rule expands the scope of who may lawfully participate in an OSHA walkaround inspection at a private employer. We previously blogged on the new rule here.  Under existing law, employees can designate authorized representatives to join OSHA inspections.  The general rule is that those representatives “shall be an employee of the employer.”  Existing regulations provide for exceptions where the presence and assistance of the third party is “reasonably necessary” to conduct an effective inspection, with examples of an “industrial hygienist or a safety engineer.” 

By contrast, the new rule taking effect May 31, 2024 would change the default to allow employees and third parties representatives not affiliated with the employer, such as non-employee union organizers.  The new rule further expands who may qualify as “reasonably necessary” to assist the OSHA inspection, expanding the scope to include individuals with skills and knowledge who are not safety professionals. Critics of the new rule argue that it is intended to allow unions access to non-union workplaces for the purpose of union organizing activities.  The presence of third parties on site may also jeopardize the confidentiality of trade secrets and commercial information.

This new OSHA walkaround rule reflects a long-standing effort to allow more third parties into OSHA inspections. The Courts struck down a prior attempt to permit more third party walkarounds. In NFIB v. Dougherty, No. 3:16-CV-2568-D, 2017 WL 1194666 (N.D. Tex. Feb. 3, 2017), a Texas federal court blocked the Obama-era regulation on procedural grounds, for failure to fulfill notice and comment requirements.  Though the new Biden-era rule went through a notice and comment period, the Chamber’s Complaint for Declaratory and Injunctive Relief argues that the new rule violates the Administrative Procedures Act, as well as the Fifth Amendment, Regulatory Flexibility Act, and the limitations of OSHA’s statutory authority under the OSH Act.

As the new rule is scheduled to take effect May 31, 2024, we are closely watching the litigation and tracking whether the new rule will been enjoined.