A forthcoming proposed rule from the Occupational Safety and Health Administration (OSHA) would allow a union representative to accompany an OSHA inspector during a walkaround at a nonunion worksite, even if the union representative is not an employee at the organization. The agency tentatively plans to issue a notice of proposed rulemaking in May.
OSHA implemented a similar rule during the Obama administration through a letter of interpretation called the Fairfax Memo, but the Trump administration rescinded it in 2017.
"Given the current administration's very pro-union policies, it seems likely the expected proposed rule will eventually become a final rule, but it is equally likely that it will face legal challenges," said John Ho, an attorney with Cozen O'Connor in New York City.
Two other lawyers agreed that the rule will encounter opposition.
"Employers will likely argue that such a rule would exceed OSHA's authority to mandate that employers must allow third parties on their worksites," said Micah Dickie, an attorney with Fisher Phillips in Atlanta.
In addition, "I think the rule would have a good chance of getting struck down by a court," said Charlie Morgan, an attorney with Alston & Bird in Atlanta.
An existing OSHA regulation stipulates that the representative authorized by employees to accompany OSHA should be an employee of the organization. However, there's an exception to that rule. The third-party representative can be a nonemployee when this "is...
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