Almost two years ago, Federal OSHA issued a final rule addressing the workplace inspection process. Accordingly, CalOSHA is now proposing to adopt and implement those same requirements at the state level. Essentially, the regulation will allow a representative of the employer and a representative authorized by the employees shall be given the opportunity to accompany the Division’s inspector during an inspection. The proposal clarifies who may be considered a representative authorized by the employees when that representative is not an employee of the employer subject to the inspection. Under the amended rule, a third party may be deemed a representative authorized by employees when, in the judgment of the Compliance Safety and Health Officer, good cause has been shown why their presence is reasonably necessary for an effective and thorough inspection. The rule describes that a third party’s presence may be reasonably necessary based on their “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.”
The proposed rule contains four primary provisions. The first provision is added, to 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. It also authorizes the Cal/OSHA inspector to allow multiple representatives for employer and employee and authorizes the inspector to resolve any disputes as to who the representatives are. The employer or employee representative may object to someone’s participation in the workplace inspection, and the inspector is authorized to make a final and immediate decision to avoid delays or interference with the inspection process.
The second provision establishes who may be designated as the representative authorized by employees for purposes of accompanying the inspection. Where the employee representative is an employee of the company or the collective bargaining (union) representative, they will be allowed to accompany the inspector. If the authorized representative of employees is someone other than an employee or collective bargaining representative, it must be shown that their accompaniment is reasonably necessary for an effective and thorough inspection. There may be various reasons why the third-party representative’s 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. The inspector will make the determination as to whether the third-party representative may accompany the inspection.
The third provision is added to establish the inspector’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. This subsection allows the inspector to limit the representative’s interactions, such as arguments, with each other, and even to remove a representative from the inspection process if their conduct interviews with the inspection.
The final provision is added to allow the employer to protect trade secrets, by requiring that any employee representative in an area containing trade secrets be an employee of the company. If this requirement results in excluding the only available employee representative, then the inspector will be required to interview employees who work in the area as part of the inspection.
A hearing will be held on April 1, and the Association will be weighing in.
