OSHA’s 2024 Walkaround Rule published on April 1, 2024, and effective May 31, 2024, amends 29 C.F.R. § 1903.8(c) to clarify that employees may designate a non-employee third party as their representative during an OSHA inspection. Prior to the rule, the existing standard required that an employees’ designee had to be an employee of the business being investigated, unless the OSHA inspector saw good cause to designate an outside party. The rule also removed the suggestion that non-employee representatives should be limited to individuals with formal credentials such as safety engineers or industrial hygienists. The rule largely reinstated an OSHA policy from 2013 known as the “Fairfax Memo,” which the Trump administration rescinded in 2017.
A coalition of business groups including the U.S. Chamber of Commerce and the National Association of Manufacturers filed a lawsuit in a Texas federal court claiming OSHA exceeded its authority. The 2024 rule’s ultimate fate has been subject to ongoing litigation and the change in administration.
Pursuant to the federal Occupational Safety and Health Act of 1970 (29 USC § 651 et seq.), all states with occupational safety and health “state plans” must maintain workplace inspection rights and procedures that are at least as effective as those provided under federal law. (29 USC § 667(c)(3).) California is a state with its own approved occupational safety and health state plan. The Department of Industrial Relations’ Division of Occupational Safety and Health (“Division”) is the agency responsible for administering and enforcing California’s state plan.
California has adopted its own similar law. Labor Code Section 6314 provides that during an investigation by the Division of Occupational Safety and Health (DOSH or Cal/OSHA, also referred to as “the Division”), a representative of the employer and a representative authorized by the employees shall have the opportunity to accompany the Division’s representative during the inspection of a workplace.
Currently, there is no equivalent to 29 CFR § 1903.8 within Title 8 of the California Code of Regulations. To ensure that California’s state inspection process is as effective as the federal process, which the law requires, the DIR just issued a Notice of Proposed Title 8 regulation that defines who can be considered an authorized representative of employees and does so in such a way as to make the Division’s worksite inspections at least as effective as those of OSHA.
The proposed rule will enhance the Division’s ability to conduct effective workplace inspections by permitting a broader array of experts to serve as employee representatives and to accompany the Division during the workplace inspection when they are needed. The proposed rule would mirror the federal rule and grant the Division the same ability as federal OSHA to rely on a broader array of employee representatives.
And according to the Initial Statement of Reasons for the proposed regulations “Some employers refuse to consent to the Division’s inspection of their workplace. These denials may become even more common if the employer objects to the presence of the authorized representative of the employees. When an employer refuses access to the Division, the Division must seek a search warrant from the Superior Court. By codifying these rules, the Division will have stronger grounds for obtaining search warrants that allow for workplace access with the necessary representatives. Absent a rule that defines the representative authorized by employees, courts may be reluctant to issue a warrant which would permit the Division’s representative and third-party representative to access a workplace for purposes of conducting an inspection.”
A public hearing has been scheduled to give all interested persons the opportunity to present statements or arguments, oral or in writing, with respect to the proposed amendments, on April 1, 2026 at 10:00 a.m. Pacific Time (US and Canada). Participants may use a Zoom link to join the meeting.