The California Division of Occupational Safety and Health (Cal/OSHA) recently published a proposed rule broadly defining who may accompany Cal/OSHA representatives during workplace safety inspections. Cal/OSHA will accept written comments on this proposed rule through April 1, 2026, and will host a public hearing on that day.
This proposed rule follows a similar federal Occupational Safety and Health Administration (OSHA) rule that went into effect in 2024. This federal rule is important because California, as a state that maintains its own OSHA plan, must adopt rules that are “at least as effective” as any federal standard, though it can also adopt rules that are more stringent than federal standards.
Under current California law, Cal/OSHA may inspect worksites for safety and health reasons. California Labor Code section 6314 gives both a representative of the employer and a representative authorized by the employees the opportunity to accompany the inspector. The Labor Code, however, doesn’t specifically define who qualifies as an authorized representative of the employees for this purpose. Cal/OSHA’s proposed rule addresses that issue and others. While it generally parallels the federal rule, it has some differences.
The proposed rule would allow both employer and employee-authorized representatives to accompany Cal/OSHA during inspections and specifies that the representative authorized by the employees may be:
- An employee;
- A third party; or
- The collective bargaining representative.
Like the current federal rule, Cal/OSHA’s rule provides that when the employee representative is a third party, they may accompany Cal/OSHA if “their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace” due to, for example, their knowledge, skills or experience with hazards or other workplace conditions.
Unlike the federal rule, however, the proposed rule exempts collective bargaining representatives from this requirement. According to Cal/OSHA’s Initial State of Reasons for the proposed rule, the employee’s union representative is “assumed to have the necessary knowledge and experience of the workforce and workplace, as well as the ability to communicate with employees about workplace matters.” This is the most notable difference between the federal rule and the proposed California rule.
Cal/OSHA’s proposed rule would also give Cal/OSHA inspectors the ability to limit employer and employee representative involvement in the inspection. It would also provide trade secret protections, providing that employers may require that an employee-authorized representative entering an area containing trade secrets be an employee in that area or someone authorized by the company to be in that area. If there is no such employee or representative, the inspector must consult directly with employees working in that area.
California employers should carefully review the proposed rule and consult with legal counsel on its potential impact on their workplaces. Employers that want to submit comments on the proposed rule must do so by April 1, 2026.
James W. Ward, J.D., Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber
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