By Rod Smith, Pat Miller, Chuck Newcom, Matt Morrison and Alyssa Levy

Last week, OSHA rescinded a controversial 2013 interpretation letter that allowed union representatives – including organizers – to participate in OSHA inspections at non-union workplaces. Many employers and employer groups viewed the interpretation as a not-very-subtle attempt to assist unions in their organizing efforts, and they protested that a union has no legal right to participate in an OSHA inspection if the union does not represent the employer’s employees. Employers also argued that an outside union representative’s participation in an OSHA inspection could be extremely disruptive, and that OSHA’s interpretation should have gone through the normal rulemaking process, including formal notice and the right of employers to comment, before being implemented.

The National Federation of Independent Businesses brought suit in federal district court to block the interpretation, but dismissed the action in response to OSHA’s decision to drop the interpretation.

In the last several years, OSHA has used informal interpretation letters instead of formal regulations to greatly expand the law. The 2013 interpretation on union participation in inspections is only one example. In the months ahead, more interpretations are expected to face scrutiny and possible repeal by the Trump Administration.

Rod Smith, Pat Miller, Chuck Newcom, Matt Morrison and Alyssa Levy are part of Sherman & Howard’s Labor & Employment Law Department, practicing in the areas of occupational safety and health law. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

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©2017 Sherman & Howard L.L.C.                                                        May 4, 2017