OSHA Withdraws 2013 Fairfax Memo On Union Representatives

The Occupational Safety and Health Administration (OSHA) has officially rescinded its 2013 Walk-Around Letter of Interpretation commonly referred to as the Fairfax Memo. Under the 2013 interpretation letter, even just one employee could select an outside/non-employee union organizer to act as an “authorized employee representative” during an OSHA walk-around inspection at the workplace.

The letter was very controversial was challenged in 2016 when the National Federation of Independent Business (NFIB) filed suit to have it overturned. The case had not been fully resolved, but the withdraw of the 2013 letter prompted NFIB to drop their lawsuit.

OSHA withdrew the letter via a separate memorandum issued on April 28, 2017. In the memorandum, OSHA stated that due to the OSH Act’s regulations, specifically 29 C.F.R. 1903.8(c), the Fairfax Memo was no longer necessary. Specifically, OSHA explained that the regulation permits, where good cause is shown and where “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace,” an inspector may allow a non-employee third party to accompany them during an OSHA inspection.

The rescission of the Fairfax Memo does not mean that a union representative is not allowed to participate in OSHA inspections. If the employer’s employees are represented by a union, the union has a right to participate in the walk-around. If nonunion employees can show good cause and demonstrate that the non-employee union representative is “reasonably necessary” to the inspection, OSHA could still allow the union representative to participate. Since this is a tougher standard to meet, the number of instances where this situation would occur is expected to be low.

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