Construction Industry Allies Sue OSHA Over Controversial ‘Walkaround’ Rule

Re-Published With Permission From Construction News and Review

By CNR Staff

Construction companies are keeping a close eye on the Occupational Safety and Health Administration’s controversial walkaround rule, saying it invites risk, impedes projects and potentially leaves firms vulnerable to leaks of proprietary information.

The rule that OSHA published on April 1, 2024 went into effect on May 31, 2024. It provides broad leeway to OSHA to invite a third-party to accompany the agency on its physical workplace safety inspections of project worksites.

Contractors and their legal representatives say this new OSHA rule offers vague definitions and undefined processes with regard to selecting a “reasonably necessary” third-party employee representative and noncommittal language allowing firms to appeal OSHA’s selection of this third-party individual. The individual might even be a non-employee with no direct relationship with the project being built. The OSHA rule goes on to day that anyone “with a vested interest in workplace safety” can join the walkaround, with no clear limits on the types of questions that the individual can ask.

Adam Hirtz, principal in the St. Louis office of Jackson Lewis, says the rule authorizes OSHA to bring in non-employees as well, such as union representatives, community activists and other third parties who could even be competitors with the contractor that is building the project. This, he adds, is a recipe for vulnerability wherein confidential information could be obtained from the jobsite and compromise trade secrets and overall confidentiality of information.

“The Walkaround Rule is opening Pandora’s Box with regard to the third parties that are permitted to come in,” said Hirtz. “There are no real barriers on whom OSHA could pick…they might even be competitors.”

Various trade and industry groups – including the Associated General Contractors of America, led by AGC Director of Safety & Health Services Kevin Cannon – have filed a lawsuit in the Western District of Texas federal court to challenge the new rule. The AGC and 20 of its Construction Industry Safety Coalition partners have asked the court to declare the rule unlawful, vacate it and stop OSHA from enforcing it. The court has not yet ruled on the motion.

Roy Viola, Jr. is a shareholder in the law firm GRSM (Gordon Rees Scully Mansukhani, LLP). He agrees that the OSHA walkaround rule is very vague.

“OSHA says ‘good cause’ has been shown that a third party is necessary, but it does not define what ‘good cause’ is,” he said. “This rule takes away control of a jobsite from the contractor. What is the authority of this third party to shut down the jobsite? Even the confidentiality aspect of the rule could significantly hamper all sorts of government projects – such as Dept. of Defense construction projects – due to the proprietary information that is normally shared during these builds.”

Associated General Contractors of Missouri (AGCMO) Safety Director Brandon Anderson says the walkaround rule has more minuses than plusses.

“From a safety professional’s standpoint, if you bring someone on the jobsite who has no relation to the task at hand – no value – you’re also increasing the risk by exposing another person to potential jobsite hazards,” Anderson said. “At the end of the day, the contractor is responsible for everyone’s safety, everyone who comes onto the jobsite. Typically anyone who enters a jobsite has had to undergo basic safety training or at least go through a jobsite orientation… such isn’t the case with the OSHA walkaround rule. This rule is definitely an overreach by OSHA,” he added.

Another concern tied to this rule, according to Hirtz, has to do with intent. There’s a possibility, he says, that a third-party individual who has not been properly vetted could bring a weapon onto the jobsite. A lesser but still legitimate concern is that the walkaround rule could conflict with the project owner’s jobsite access rules.