Seyfarth Synopsis: The California Division of Occupational Safety and Health (“Cal/OSHA”) has issued a proposed regulation (Section 331.8. Representatives during the Inspection) that allows employees to designate a representative, including another employee, a third party, or the collective bargaining representative, during workplace safety inspections conducted by Cal/OSHA.
The California Division of Occupational Safety and Health (“Cal/OSHA”) issued a Notice of Proposed Rule Making in February 2026 to implement a new “Walkaround Rule,” allowing employee representatives to join Cal/OSHA inspections. The proposed regulation follows the federal Occupational Safety and Health Administration’s (“OSHA”)
“walkaround” requirements from the Biden Administration, which were updated and clarified in April 2024 (which we have previously blogged about). Since issuance, the federal “walkaround” requirements have been stayed pending federal litigation in Texas. If the Courts leave the Walkaround Rule in place, it is possible that the Trump Administration might withdraw the interpretation to the extent it permits third parties on private property during OSHA inspection.
As an OSHA state plan state, California is required to implement OSHA standards that are at least as effective as federal standards within six months. Though the Walkaround Rule may not be an OSHA standard per se, Cal/OSHA appears to be moving forward to implement its equivalent. The public may submit written comments on Cal/OSHA’s new rule through April 1, 2026, when a public hearing before the Standards Board is scheduled.
Although the rule is not yet final, California employers should begin preparing for changes in employer obligations, inspection dynamics, and confidentiality considerations, as well as an impact on union organizing.
Cal/OSHA’s Stated Intent
The stated intent of Cal/OSHA’s proposed “Walkaround Rule” is to broaden the definition of a third-party representative authorized by employees and align with the federal OSHA rule. Further, Cal/OSHA clarifies that the rule will address a supposed “problem”: employer representatives allowed during the walkaround, but not unrecognized employee representatives or third-party union business agents. Cal/OSHA states that employee representatives are typically only in unionized workplaces, and employee representatives, even outside unionized workplaces, may help the inspections based on their familiarity with the workforce, knowledge of the worksite, or for their expertise in other relevant areas.
Cal/OSHA further suggests employee representative participation in the inspections will encourage employees to participate who, Cal/OSHA believes, may fear retaliation, though retaliation is already unlawful under California law. Cal/OSHA also states third party employee representatives may be helpful during worksite inspections where Cal/OSHA may need more expertise as to the industry, the worksite, and specific work processes, or assistance in communicating effectively with the employees.
Overview of Cal/OSHA’s Proposed Walkaround Rule
Expanded Participation in Inspections
The proposed rule will allow both a representative of the employer and a representative authorized by employees to accompany the Cal/OSHA inspector during the inspection of the worksite. The proposed rule makes clear that a “representative authorized by employees” can be an “employee of the employer, a third party, or the collective bargaining representative.” If an employer objects to someone’s participation, the proposed rule grants the Cal/OSHA inspector the authority to make a final and immediate decision “to avoid delays or interference with the inspection process.”
Unlike the federal rule, Cal/OSHA’s proposed rule will not require the collective bargaining representative to make a showing that they are likely to aid in the inspection. Cal/OSHA states that the union representative is assumed to have the necessary knowledge and experience of the workforce and workplace and the ability to communicate with employees about workplace matters.
Increased Inspector Discretion
The proposed rule also establishes the Cal/OSHA compliance officer’s authority to lead the inspection and make sure that the conduct of the representatives who participate does not interfere with the effectiveness of the workplace inspection. The proposed rule authorizes the inspector to enforce “reasonable rules” to make sure an inspection goes smoothly and even bar a disruptive person from the inspection, with broad discretion.
Limited Trade Secret Protections
Lastly, the proposed rule permitting third parties onto private worksites provides minimal protection of employer proprietary and confidential business information from unauthorized disclosure. Under the proposed rule, an employee representative in an area containing trade secrets is to be considered an employee of the company. The rule does not provide for invited third parties to sign a non-disclosure agreement, thereby providing few protections from third parties using Cal/OSHA inspections as an opportunity to obtain trade secret information and other forms of foreign-sponsored corporate espionage.
Impact on Union Organizing
A clear impetus for the rule is labor unions’ interest in participating in Cal/OSHA inspections at non-represented employers and non-represented portions of worksites. Labor unions market themselves through alleged safety expertise and a Cal/OSHA inspection would serve as an opportunity to market the union’s advocacy to an employee population and create potential organizing opportunities.
Key Takeaways for Employers
With the implementation of the proposed rule, California employers may have:
- Third-party involvement that may increase scrutiny, introduce adversarial dynamics, and expand the scope of inspector inquiries.
- Less control over who enters their worksite during inspections.
- Less protection over proprietary and confidential business information.
Seyfarth will continue to monitor the Cal/OSHA rulemaking process and relevant legal landscape. If you have questions about the OSHA Walkaround Rule, the Cal/OSHA rulemaking, or related issues, Seyfarth’s Workplace Safety team is available to help.