Jackson Kelly PLLC

Workplace Safety and Health News Alert


May 1, 2017

By: Karen L. Johnston

For clients and friends of Jackson Kelly PLLC
Volume 13, Number 8
©2017 Jackson Kelly PLLC

The Department of Labor rescinded an Occupational Safety and Health Administration (“OSHA”) memorandum permitting union or community organization representatives to walk around with OSHA inspectors during inspections of non-union employers.  Based on this action, a pending legal challenge to the memorandum was dismissed.

The controversy over this issue started in 2013 when OSHA issued an interpretation letter stating that union representatives were allowed to accompany OSHA inspectors on their inspection walkarounds at non-union worksites.  This walkaround privilege would be granted, when in the discretion of the OSHA inspector, the union representative would add value and contribute to a more effective inspection, and the employees elected to have that union representative act as their walkaround representative.  This interpretation was based on 29 C.F.R. § 1903.8(c), which allows a third-party, typically interpreted to be an engineer or industrial hygienist, to accompany an OSHA inspector during an inspection when the inspector believed good cause existed.

Employers believed that OSHA’s expansion of this regulation to permit union representatives at non-union worksites was an improper expansion of the regulation that should have undergone notice and comment rulemaking.  Because OSHA rescinded the interpretation letter, the legal challenge has been dismissed.  Therefore, this policy is no longer part of OSHA’s procedures. For questions on this aspect or others of OSHA’s inspection authority, please contact Jackson Kelly PLLC.

Denver, Colorado

Responsible Attorney
Karen L. Johnston

The Jackson Kelly PLLC Occupational Safety & Health News-Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Occupational Safety & Health News-Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.

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