Alert
Alert
02.24.26
As previously alerted, federal OSHA’s May 2024 walkaround rule clarified that employees, like employers, have the right to designate a non-employee third party to be their representative during worksite inspections. If federal OSHA establishes a new standard, state-plan states such as California must adopt their own standard that is at least as effective as the new federal standard within six months. (See 29 CFR 1953.5(a)(1).) Although late, in February 2026, Cal/OSHA published a Notice of Proposed Rulemaking seeking to add a section to the California Code of Regulations titled, “Regulating the Process for Representatives of Employers and Authorized Representatives of Employees to Accompany the Division During Workplace Inspections.” The proposed new 8 C.C.R. section 331.8 consists of four subsections, which are summarized below.
Cal/OSHA Is the Final Decision-Maker
An employer representative and a representative “authorized by employees” shall be given an opportunity to accompany Cal/OSHA inspectors during workplace inspections. Cal/OSHA may permit additional representatives. Cal/OSHA “shall have authority to resolve all disputes as to who are the representatives authorized by the employer and the employees.” Employers should note that although they may object to someone’s participation in the inspection, Cal/OSHA is authorized to make a final and immediate decision regarding that person’s participation.
Good Cause to Participate, Except for Company Employees or Union Representatives
The authorized employee representative “may be an employee of the employer, a third party, or the collective bargaining representative.” If the representative is a third party, good cause must be shown as to:
why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (including, but not limited to, because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).
A third-party representative must demonstrate why his or her “participation may be reasonably necessary, including their knowledge of the workplace, the industry, the hazards involved, or their ability to communicate with hard-to-reach employees in the workplace.” Cal/OSHA will determine whether the third-party representative’s participation is likely to make the inspection more effective.
Significantly, the same good cause is not required if the employee representative is a company employee or collective bargaining representative. These employee representatives “will be allowed to accompany the inspector,” automatically. This is where Cal/OSHA’s proposed rule differs from the federal rule, which requires collective bargaining representatives to make a showing that they are likely to aid in the inspection. Here, Cal/OSHA assumes the union representative has the necessary knowledge and experience and can communicate with employees.
Cal/OSHA Is the Moderator
Cal/OSHA is “authorized to limit the scope and extent of the employer and employee representatives’ engagement with each other … to ensure that the inspection is fair, effective, and limited to the appropriate subject matter.” If a representative interferes with a fair and orderly inspection, Cal/OSHA may revoke the representative’s right to participate in the inspection. For example, should there be arguments between representatives, the inspector can remove representatives from the inspection. Other grounds for possible removal from the inspection are advocacy or addressing of issues not germane to the inspection.
Only Employees in Trade Secret Areas
Finally, upon the employer’s request, only authorized employee representatives who are company employees can access areas containing trade secrets. If there are no such representatives, then Cal/OSHA shall consult with a reasonable number of employees who work in those areas.
A public hearing has been scheduled for April 1, 2026, and written comments regarding the proposed rule are due by 11:59 p.m. on April 1, 2026.
Contact your regular Pillsbury contact or the authors of this alert to submit written comments or for recommendations on how to prepare for future inspections.