OSHA has provided notice, in the context of an on-going federal
lawsuit, (National Federation of Independent Businesses v.
Dougherty, N.D. Tex., No. 16-2568, 4/27/17), that it has
rescinded the interpretation letter and removed the guidance from
OSHA's Field Operations Manual (FOM). The "Fairfax
Memo" was a standard interpretation letter that provided that
non-employees of the subject employer could be permitted to
accompany OSHA during the walk around portion of the
inspection. Examples mentioned in the letter of who could
participate in the inspection included union officials of labor
organizations that did not represent the employer's employees
and community organizers.
The presiding judge had previously denied part of OSHA's
Motion to Dismiss the lawsuit, indicating that the new policy was a
rulemaking that should have gone through the required public notice
and comment period because it had the effect of broadly changing
OSHA's procedures. Based on OSHA's
