Another Friday Night Surprise: Cal/OSHA Proposes State Analog to Worker Walkaround Rule

Consistent with its tradition of dropping surprise regulatory proposals near the end of the day before a holiday weekend, Cal/OSHA published a formal proposal on Friday the 13th, 2026, to promulgate a California version of federal OSHA’s so-called “worker walkaround rule.” That rule allows non-employee third parties to serve as an employee representative during an OSHA workplace inspection provided that third party is reasonably necessary to conduct an effective and thorough inspection. California employers should take note of this development and monitor it closely. There is a public hearing scheduled for April 1, 2026, whereby interested individuals will have the opportunity to present statements or arguments on the rule.

The Procedural Posture and Timing of the Proposed Rule Raise Eyebrows and Concerns

The proposal is framed as a so-called “Horcher amendment.” Such proposals involve rulemaking that allows Cal/OSHA to ensure it complies with its state plan approval from federal OSHA by maintaining standards that are “at least as effective” as federal standards. Such proposals may become effective under fast-track procedural requirements rather than through the full panoply of requirements generally applicable to Cal/OSHA rulemaking under California law, so long as the proposal is “substantially the same as the federal standard.”¹

The timing of this particular Horcher proposal is intriguing (at least) given that the analogous federal regulation—29 C.F.R. § 1903.8—was controversial when adopted under the previous federal administration, and in view of the expressed priorities of the current federal administration generally to pursue regulatory reduction in virtually all areas, including OSHA. Many stakeholders have urged the current administration to withdraw the federal regulation, which is currently the subject of a legal challenge in federal court.² 

We summarized the history of federal OSHA’s Worker Walkaround Representative Policy leading to the promulgation of 29 C.F.R. § 1903.8 and subsequent amendments here. That was nearly two years ago, in April 2024. The timing of Cal/OSHA’s proposal being dropped in February 2026, suggests Cal/OSHA perceives a time pressure to rapidly utilize the fast-track procedures available for Horcher amendments in view of potential changes to the federal rule, and in the absence of pressure from the current administration to comply with the requirement to maintain state rules that are “at least as effective” as federal rules.

Substantive Differences from Federal Rule Raise Further Concerns

The substance of the Cal/OSHA proposal is similar to the federal worker walkaround rule in many respects, but it is by no means identical. These differences introduce an additional layer of complexity with respect to the asserted legal basis for using the expedited Horcher amendment process. For example, the Cal/OSHA proposal provides that the chief of the Division of Occupational Safety and Health, or their representative, shall be “in charge of inspections” and is authorized to “limit the scope and extent of the employer and the employee’s representatives’ engagement with each other and with any employees involved in the inspection to ensure that the inspection is fair, effective, and limited to the appropriate subject matter.”³ It further states that Cal/OSHA “is authorized to deny the right of accompaniment under this section to any person whose conduct interferes with a fair and orderly inspection.” In contrast, the federal walkaround rule does not grant OSHA comparable authority—particularly the ability to deny an employer representative the right to accompany the inspector during a walkaround. The Cal/OSHA proposal also more broadly authorizes inspectors to interview “a reasonable number of employees” working in safety- or health‑related areas that may contain proprietary equipment, information, or trade secrets, when those employee‑authorized representatives are not authorized by the employer to enter those areas.

From Friday the 13th to April Fool’s Day: At Least Someone Has a Sense of Humor 

The publication of the proposal on February 13, 2026—the night before Valentine’s Day and the Friday before the President’s Day Holiday—creates a required notice and comment period that ends on April Fool’s Day.  Whether such timing may merely be a matter of coincidence or proof that someone has a strange sense of humor remains unknown.  What is certain, however, is that Cal/OSHA’s new proposal has prompted the immediate interest of California’s employment law community.

Littler will continue to monitor this important development.  Employers should pay attention to these developments and contact their employment counsel to consider opportunities to participate during the notice and comment period, as well as be prepared for potential compliance, should the proposal complete the regulatory rulemaking process initiated on February 13, 2026.