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Cal/OSHA Likely To Adopt New Fed OSHA Rule Regarding Employee Representative Participation At Workplace Inspections

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: May 03, 2024

On April 1, 2024, the federal Occupational Safety and Health Administration (OSHA) issued a rule that made two changes to the procedures a Compliance Safety and Health Officers must follow when conducting a workplace inspection.  First, the rule clarifies that the employee representatives who are present and participating during an OSHA inspection may either be an employee or a third party (e.g., union representative).  Second, the rule clarifies that a third-party representative need not have skills in industrial hygiene or safety engineering, but may have a variety of other skills, knowledge, or experience which give the compliance officer good cause to believe the representative could aid in the federal OSHA inspection.  Those other skills could include experience with particular workplace hazards or language / communication skills.

The federal OSHA directive also states that “State Plans” are required to adopt regulations that are identical to or at least as effective as this rule, unless the state can demonstrate that such changes are not necessary because their existing requirements are already at least as effective in protecting workers as the federal rule.  If a state does not participate in the federal Occupational Safety and Health Administration (OSHA) program, that state can implement a separate state program that addresses workplace safety (State Plan).  California is one of several states that has enacted its own State Plan.

California’s State Plan does not discuss the procedures for a OSHA workplace inspection.  However, the Division of Occupational Safety and Health of California (DOSH) publishes a Policies and Procedures Manual (Manual) which contains guidelines for conducting a workplace inspection.  The Manual indicates that if there is an authorized employee bargaining unit representative for the worksite, the compliance personnel “must make every effort to invite the representative to participate” in the workplace inspection.  The Manual further states that if there is no authorized employee bargaining unit representative, the compliance personnel “must consult with a reasonable number of the employer’s employees concerning matters of workplace safety and health.”

The rules in the DOSH Manual do not address: 1) whether the employee’s representative in a workplace inspection can be a third party; or 2) what type of skills the third-party representative of the employee can have.  Thus, California’s State Plan arguably does not have regulations that are similar to or “at least as effective” as the new OSHA rule.

Within six months of the April 1, 2024 OSHA’s final rule (October 1, 2024), California is required to adopt a revised regulation that is identical to or at least as effective as that the OSHA final rule.  For California employers, this would likely mean that during DOSH-conducted workplace inspections, employees could be represented by an individual who does not work for the employer, such as a union representative.

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