Employers often approach workplace accidents and resulting OSHA citations as discrete regulatory events — managed by safety teams, resolved through settlement or litigation, and ultimately closed. As many employers come to learn, OSHA inspections and citations frequently serve as the entry point into a much broader and more complex risk landscape—one that can implicate criminal exposure, expand into multiple forms of civil litigation, and create significant business and reputational consequences.

Below is a structured look at how that risk unfolds—and how employers can position themselves to manage it and limit liabilities.

OSHA Citations: The Gateway Issue

At the most basic level, OSHA citations matter for many reasons beyond the monetary penalties, which can be significant. Accepted OSHA citations can create evidence for a tort case, predicates on the record for future repeat and willful violations, “red flags” for third party tracking services, and public relations disasters. Citations can quickly become foundational evidence for other forms of liability, and in serious cases, may trigger criminal enforcement.

Criminal Liability Under the OSH Act

Many employers underestimate the circumstances under which OSHA violations can lead to criminal charges. Under Section 17(e) of the OSH Act, criminal liability may arise where a workplace fatality occurs, the employer violated a specific OSHA standard (not just the General Duty Clause), and the violation was classified as willful and caused the fatality.

The consequences can include up to 6 months imprisonment and fines up to $500,000 for the company and $250,000 for individuals.

Importantly, an entire multinational organization can be publicly impugned, indicted and prosecuted based on the misconduct of one lower-level manager.  But prosecution is not limited to the corporate entity. Criminal liability can extend to safety managers, operations managers, and executives.

Despite turnover at federal agencies, OSHA continues to refer Section 17(e) cases and the Department of Justice continues to prosecute them. For an employer to be indicted and ultimately convicted of a violation, the Department of Justice will need to prove to a jury the existence of the willful OSHA violation (and willful mental state by a specific management individual) beyond a reasonable doubt, a higher legal standard than required for OSHA toissue the civil citation. 

The Critical Role of “Willful” Violations

The willful classification is the linchpin for USDOL seeking enhanced civil penalties and USDOJ pursuing criminal sanctions.

Though definitions can vary based on jurisdiction and federal courts, OSHA generally defines a willful violation as involving purposeful disregard of a known legal requirement or plain indifference to employee safety, including failure to act on known hazards or communicate safety requirements.

In practice, this means that the government is looking for evidence that management:

  • Knew of the requirement and hazard;
  • Failed to act; or
  • Failed to implement effective safety systems.

Pre-accident hazard analysis and post-incident narratives—documents, emails, training records, and witness testimony—become central to enforcement risk.

Avoiding the Willful Trap

From a compliance standpoint, the most effective defense is a proactive and documented safety program. Key elements include:

  • Identifying and addressing hazards before an incident;
  • Implementing a safety and health management system and appropriate safety programs to address identified hazards;
  • Supervising employees and effectively enforcing safety rules; and
  • Conducting root cause analyses after incidents and implementing recommendations.

These are not merely “best practices”—they are the factors OSHA and DOJ will examine in determining whether conduct crosses into willful territory. It is critical for employers to manage OSHA inspections deliberately and strategically to avoid willful OSHA citations.

Criminal Exposure Beyond OSHA: “Dishonesty” Offenses

A critical—and often overlooked—risk arises from employers’ conduct during inspections and investigations. Many high-profile prosecutions stem not just from the underlying safety failure—but from attempts to conceal it.

Employers (and individuals) may face separate federal criminal liability for falsifying records, and making false statements to federal investigators. These offenses carry penalties of up to 5 years imprisonment per violation.

There is no requirement for Miranda warnings in OSHA interviews, meaning statements made casually or without counsel may still be used in criminal proceedings. The takeaway is straightforward: inspection management and interview preparation are risk-critical activities. Employers must provide only truthful, non-speculative information.

State Criminal Liability: No Federal Shield

Employers sometimes assume that federal OSHA enforcement preempts state criminal law. That is not the case. Courts have confirmed that state prosecutors may pursue criminal charges based on workplace safety violations, including:

  • Manslaughter
  • Reckless conduct
  • Even murder, in extreme cases

These cases often target both corporate entities and individual executives, particularly where there is evidence of knowing disregard for safety risks.

The “Bermuda Triangle” of Civil Exposure

Beyond criminal enforcement, workplace incidents frequently trigger overlapping civil liabilities—what we often describe as a “Bermuda Triangle” of claims.

Employment Law Exposure

Workplace incidents can intersect with multiple employment statutes, including:

  • FMLA (leave rights and job protection)
  • ADA (reasonable accommodation and disability protections)
  • Whistleblower laws, where employees report safety concerns

Employment retaliation claims—particularly after injuries or safety complaints—present significant risk and are actively investigated by the OSHA whistleblower investigation office.

Workers’ Compensation—And Its Limits

Direct employees of the employer are typically limited to compensation for workplace injuries and illnesses in the workers’ compensation system.

While workers’ compensation systems provide the exclusive remedy for many injury claims, they do not eliminate all exposure.

Employers still face:

  • Retaliation claims for employees who report injuries
  • Variability in benefits and procedures across states
  • Potential spillover into other forms of litigation

Perhaps the most expansive exposure arises from third-party claims, including:

  • Negligence (failure to train, supervise, or identify hazards)
  • Breach of contract claims involving contractors
  • Product liability or equipment modification issues
  • Indemnity and subrogation claims from insurers

These claims often rely heavily on OSHA findings and underlying incident facts.

The Bottom Line: A Single Incident, Multiple Fronts

What begins as an OSHA inspection can quickly expand into criminal enforcement (federal and state), parallel civil litigation, employment claims, as well as reputational and business consequences.

And in nearly every instance, the OSHA citation—and the facts developed during that process—serve as the central narrative thread across all proceedings. In short: OSHA citations are not an endpoint—they are often the beginning of a much broader exposure profile. Employers that recognize this early are far better positioned to manage risk and avoid escalation across criminal, civil, and business domains.

Employers’ best practices:

  • Treat OSHA inspections as serious, high-stakes legal events and not brain-storming sessions.
  • Invest in proactive safety systems that demonstrate diligence and good faith.
  • Manage incident response carefully, including evidence preservation and root cause analysis.
  • If applicable, take prompt effective action to correct unsafe conditions, remove unsafe equipment from service, and retrain employees.
  • Engage in careful communications with caution to preserve privilege and avoid admissions.
  • Prepare personnel for OSHA interviews and avoid admissions.
  • Align legal, safety, and business leadership in responding to incidents and citations.

Seyfarth Synopsis: On June 22, 2026, New York City Mayor Zohran Mamdani signed Executive Order No. 17, Protecting Workers from Extreme Heat. The Executive Order, which took effect immediately, does not, standing alone, create a new private-sector heat standard. Instead, it directs City agencies to develop multilingual heat illness prevention guidance, adopt heat illness prevention plans for municipal employees and contractors, review construction safety requirements, study heat-related workers’ compensation claims and potential public health reporting requirements, and reinforce existing protections such as bathroom access and construction-incident reporting. Employers with operations in New York City should treat the Order as an important signal of where local workplace heat regulation and enforcement may be headed, particularly for construction, delivery, warehousing, and other roles with elevated heat exposure.

Background on Heat Illness Enforcement

Summer heat waves and employee exposure to heat (from high temperatures, humidity, sunlight, industrial sources, and metabolic heat from exercise) are growing areas of concern to OSHA agencies. Though no current federal OSHA regulations impose specific heat illness requirements for private-sector employers, all New York employers are governed by the OSH Act’s General Duty Clause, requiring employers to provide a workplace free from any recognized hazards. Federal OSHA has used the OSH Act’s General Duty Clause to cite and prosecute employers who fail to protect employers from occupational exposures to heat, particularly when recognized outdoor heat waves result in horrific employee fatalities. Federal OSHA has revised its National Emphasis Program to focus its enforcement on occupational exposure to indoor and outdoor heat. New York City employers whose employees are exposed to heat should implement heat illness prevention programs now to protect employees, or risk OSHA and other legal liabilities. 

New York City’s Initial Foray Into Local Heat Illness Regulation

Because federal OSHA’s heat illness regulations still in the rule-making process, New York City has joined the growing list of local jurisdictions moving forward with their own workplace heat illness protections. Mayor Zohran Mamdani’s Executive Order is premised on the City Department of Health’s finding that “hundreds of thousands of workers in New York City” are exposed to extreme heat while working on hot days, increasing the risk of heat-related illness and death. The Executive Order also recognizes that heat stress can increase the risk of workplace injury more broadly, reduce productivity, and place pressure on workers who lack paid breaks, reliable restroom access, or practical opportunities to hydrate during the workday.

The Executive Order identifies several worker populations as examples of those facing heat-related risk, including construction workers, street vendors, and app-based delivery workers, day laborers, and other gig workers. It notes that roughly one-third of the City’s working population are believed to work outdoors for prolonged periods of time. The Executive Order ties these concerns to climate trends, including the City’s projection [YAR1] that by the 2050s, New York City could experience more than four times as many heat waves each year compared to current rates.

What the Executive Order Requires

Rather than create a comprehensive set of new regulations that private employers must follow, the Executive Order directs the Department of Health and Mental Hygiene (“DOHMH”), in coordination with other New York City departments, to develop worker heat illness prevention guidance and educational materials. Those materials must recommend best practices to prevent heat-related illnesses, injuries, and deaths for employees in both outdoor and indoor worksites. The guidance must be available in languages commonly spoken by workers in New York City. Outdoor worker guidance is to be prepared as soon as practicable. Indoor worker guidance must be prepared by March 1, 2027.

The Executive Order further directs the Department of Buildings (“DOB”) to review current construction safety and training requirements to determine whether existing requirements sufficiently protect against worker heat illness. DOB is directed to consult with relevant worker organizations and may issue recommendations for new construction safety and training guidance. Those recommendations are also due by March 1, 2027.

In addition, the Executive Order requires all agencies to develop and implement indoor and outdoor worker heat illness plans for City employees and contractors when the City’s Heat Emergency Plan is activated. Agencies must consider revised DOHMH guidance when developing and implementing those plans. Separately, when the Heat Emergency Plan is activated, the New York City Emergency Management must communicate worker heat illness prevention information based on forecasted temperatures, including recommendations for employers based on the new guidance.

The Executive Order directs DOHMH to review heat-related workers’ compensation claims filed with the New York State Workers’ Compensation Board by City employees to evaluate patterns related to temperature, including excess risk during hot weather. DOHMH also must study whether heat-related illnesses should be added to the City’s list of Diseases and Conditions of Public Health Interest reportable under section 11.03 of the New York City Health Code. The study must consider whether reports should include the location of employment and the identity of the employer. If DOHMH determines that reporting would serve the public health interest, the Commissioner of Health may propose amendments to the Health Code.

Finally, during times of high heat, DOB must notify and remind property owners, contractors, subcontractors, and others in control of construction sites of existing obligations to report heat-related incidents when a worker requires emergency medical services transport or immediate emergency care. City agencies with jurisdiction over worker protection measures are directed to strictly enforce rules intended to increase public bathroom access for outdoor workers, including the New York City Administrative Code provision granting food delivery workers the right to use the bathroom of restaurants for which they make deliveries. City agencies also must include information about bathrooms, Cooling Centers, Parks Department cooling locations, water features, drinking fountains, and shaded locations in messaging to workers.

What the Executive Order Does Not Do

The Executive Order is not a standalone occupational heat standard imposing immediate requirements for private employers. There is no new requirement to provide water, shade, rest breaks, acclimatization, training, or written heat illness prevention plans. Rather, the Executive Order directs City agencies to develop guidance, evaluate existing requirements, communicate heat safety information, enforce certain existing rules, and consider future regulatory action.

At the same time, employers should not dismiss the Order as symbolic. The decisions and guidance arising out of the Executive Order could become the foundation for more specific rules, procurement expectations, enforcement, or local standards of care.

Employer Takeaways

Employers with New York City operations, particularly those with outdoor, transportation, warehouse, or other heat-exposed workforces, should monitor the City’s follow-on guidance and agency action closely. Construction employers should pay particular attention to DOB’s review and recommendations issued before the March 1, 2027 deadline. Employers that contract with City agencies should also evaluate whether municipal heat illness prevention plans may flow down through contract terms, site rules, or agency-specific work requirements.

Even before additional guidance is issued, employers should review existing heat illness prevention plans. A practical review should address access to cool drinking water, rest and recovery opportunities, shade or cooling areas where feasible, acclimatization for new or returning workers, training for supervisors and employees, emergency response procedures, heat index or temperature monitoring, and documentation of heat-related controls and communications. For multilingual workforces, employers should also evaluate whether heat safety information is being delivered in languages workers actually understand.

The Executive Order also arrives against the backdrop of heightened federal and state attention to heat illness prevention. OSHA has proposed a heat-specific rule for indoor and outdoor work settings. In the interim, OSHA continues to rely on the General Duty Clause and its heat-related national emphasis program enforcement initiatives to inspect and cite employers for heat hazards. New York City’s Executive Order is another data point in a broader trend toward more prescriptive heat illness prevention expectations.

Practical Checklist for Employers

  • Conduct job hazard analyses to identify job tasks with outdoor or indoor heat exposure, including nontraditional or contractor workforces.
  • Develop and implement heat illness prevention plan to protect employees.
  • Review water, rest, shade, cooling, acclimatization, and emergency response practices.
  • Train employees, ensuring that employees and supervisors understand how to recognize and respond to heat-related illness.
  • Assess whether heat safety communications are available in languages commonly understood by the workforce.
  • Monitor New York City agency guidance, DOB construction recommendations, and any Health Code reporting proposal.

Seyfarth Synopsis: Federal OSHA has proposed new rulemakings seek to minimize respiratory protection requirements for employers which may require employers to update practices in 2026.  

In June 2026, OSHA has advanced a proposal to amend the Respiratory Protection Standard (29 CFR 1910.134) and scheduled virtual public hearings on this and other proposed rulemakings.

1. What’s the Change to the Respiratory Protection Standard?

Under the current Respiratory Protection Standard, employees whose job duties might require them to use respirators must be medically evaluated, receive fit tests, and receive appropriate training.  Voluntary use of filtering facepiece respirators (FFRs) can be allowed with special Appendix D training (and no medical evaluation or fit test), but only where there is no exposure to a respiratory hazard above an occupational exposure limit.

OSHA’s proposed regulatory update would remove medical evaluation requirements for employees using filtering facepiece respirators (FFRs), such as N95s, and loose-fitting powered air-purifying respirators (PAPRs).  All other Respiratory Protection Standard program elements—hazard assessment, training, fit testing, and maintenance—would remain unchanged.

2. Why the Change?

Medical evaluations ask detailed questions and require follow-up for a range of common respiratory and cardiovascular conditions, resulting in substantial administrative costs to employers. In practice, doctors rarely prohibit employees from donning FFRs (e.g. N-95 masks commonly worn during the pandemic) and PAPRs (which feed air into a mask and do not require negative pressure through a filter). Further, OSHA notes that FFRs and PAPRs impose minimal physiological burden in typical work conditions, and cites the limited evidence that medical evaluations improve safety outcomes for FFR and PAPR users.

3. Potential Legal Claims Founded on Respirator Injuries

Regardless of the alleged low physiological burden created by FFRs and PAPRs and the limited evidence of improved safety outcomes, the Respiratory Protection Standard’s medical evaluation requirements were founded on an understanding that respirator use could cause injuries to certain sensitive employees. Respirator use without medical evaluations could result in or coincide with physical injuries or mental health crises (e.g. claustrophobia from the confining mask of a PAPR). For direct employees, these incidents could result in unanticipated workers’ compensation claims. Staffing agency employees or third-party contractors could file tort claims against the host employer. 

4. Overlooked ADA liabilities?

Because workers who would only don an FFR or PAPR would no longer be required to have a medical evaluation performed, a policy that requires medical evaluations for these employees may constitute an unlawful medical inquiry under Title I of the Americans with Disabilities Act, subjecting the employer to ADA liability.  Accordingly, the Respiratory Protection Standard revision may require employers to update their respiratory protection programs and analyze which types of respirators employees will use to ensure they can lawfully be medically evaluated.

5. Additional Chemical Standard Proposed Changes

OSHA is also proposing rulemakings on regulations relating to 16 chemicals, to expand the types of permissible respirators. 

Chemical standards proposed for change include: 2-dibromo-3-chloropropane; 1, 3-Butadiene; 13 Carcinogens (4-Nitrobiphenyl, etc.); Acrylonitrile; Asbestos; Benzene; Cadmium; Coke Oven Emissions; Cotton Dust; Ethylene Oxide; Formaldehyde; Inorganic Arsenic; Lead; Methylene Chloride; Methylenedianiline; and Vinyl Chloride.

6.  Fixed Ladder Proposed Changes

OSHA proposed amending the Walking Working Surface Standard with regard to fixed ladders to eliminate the November 18, 2036 deadline requiring employers to retrofit all existing fixed ladders over 24 feet with personal fall arrest or ladder safety systems.

For questions on these issues or other workplace safety and environmental inquiries, contact your attorney from Seyfarth’s Workplace Safety and Environmental team.

By: Ilana Morady

Cal/OSHA recently issued a revised draft of its general industry workplace violence prevention standard, offering the clearest indication yet of how the Division intends to build on SB 553. Although the rule is not final, the current draft reflects meaningful stakeholder input and signals where compliance expectations are likely headed. Employers should treat it as a practical roadmap, particularly given that Cal/OSHA is already enforcing workplace violence prevention obligations through SB 553.

Comments on the current draft are due by June 1, after which additional revisions are expected before the rule advances further in the rulemaking process.

Expansion Beyond SB 553

The draft largely incorporates the framework created by SB 553, which took effect in July 2024, but goes further by adding detail on hazard assessment, post‑incident response, and program implementation. The Division continues to rely on its authority to impose additional requirements it deems necessary to protect employee safety. The final standard will not simply mirror the statute but instead expand on it in ways that require more structured and documented compliance efforts.

Trauma Counseling Requirement Refined

One of the most closely watched provisions remains the trauma counseling requirement. The revised draft reflects a shift from earlier language by clarifying that employers satisfy this obligation if counseling is available through workers’ compensation, employee assistance programs, or initial services offered by the employer.

Cal/OSHA also emphasizes that employers are not responsible for diagnosis or treatment. Even with these revisions, questions remain about which employees qualify as “affected” and how broadly the obligation may apply following an incident.

Scope and Coverage Changes

The updated draft introduces several targeted revisions that clarify who is covered and how coverage is measured. The small employer exemption has been narrowed by revising how employee headcount is calculated. Instead of looking at staffing at a single point in time, the draft requires employers to assess whether they have 10 or fewer employees based on staffing levels at the workplace over the preceding 365 days. This change is intended to prevent fluctuation in coverage based on temporary staffing patterns and aligns the measurement approach with other Cal/OSHA standards.

The scope of the rule has also been expanded to expressly include employer‑provided transportation. This addition closes a gap that could otherwise exclude incidents occurring during transportation arranged or controlled by the employer, such as shuttle services or company vehicles used for work-related travel.

The draft further revises key definitions to align with existing Cal/OSHA provisions. In particular, the definitions of “authorized employee representative” and “designated representative” have been conformed to existing regulatory language, which may broaden who can participate in workplace violence prevention activities, including access to records and involvement in investigations. These definitional changes are likely to have practical implications for how employers manage employee participation, third-party representatives, and the flow of sensitive information within their programs.

Hazard Assessment Expectations

Cal/OSHA has revised not just the examples in the hazard assessment section, but the structure and framing of the analysis itself in response to stakeholder feedback. Earlier drafts included a list of specific “examples” of workplace violence hazards, which many commenters viewed as overly prescriptive and potentially creating a checklist approach to compliance. In the current draft, the Division has removed several of those examples and reframed the list as factors for employers to consider when evaluating risks.

The agency deleted references to high crime areas, hostile work environments, working with individuals with a history of violence, excessive overtime, and providing security services. These changes reflect an effort to avoid characterizing certain industries or conditions as inherently hazardous and to shift the focus back to employer-specific risk assessments.

In addition, the Division has incorporated “appropriate staffing levels” into the definition of work practice controls. This change aligns the draft with the healthcare workplace violence standard and signals that Cal/OSHA may view staffing decisions as relevant to hazard mitigation in certain contexts.

Program Implementation and Training

The draft includes a number of refinements that affect how workplace violence prevention programs must operate. Employers must ensure that employees can report concerns to someone other than a supervisor who may be involved in the incident, particularly in employee‑on‑employee situations.

Training requirements have also been clarified. Employees must be given an opportunity to ask interactive questions, and where training is conducted remotely, those questions must be answered within one business day. The draft further clarifies that while employees are protected from retaliation for lawful self‑defense, employers may still enforce policies designed to prevent physical confrontations and reduce the risk of injury.

Recordkeeping and Access

The revised draft expands employee access to workplace violence records, including investigation materials. It also allows designated representatives to obtain access, subject to limited redaction of personal identifying information.

This expanded access raises practical considerations around confidentiality and data security, particularly given the sensitive nature of workplace violence investigations and the lack of clear boundaries around who may qualify as a representative.

Practical Implications Although further revisions are expected before formal rulemaking proceeds, the direction of the regulation is clear. Cal/OSHA is moving toward a comprehensive workplace violence standard that builds on SB 553 while expanding employer obligations in several key areas. In the meantime, enforcement continues under existing law.

Seyfarth Synopsis: Virginia passes heat illness statute to develop VOSH heat illness standards regulating private employers by May 1, 2028.

With the federal OSHA heat illness standard in rulemaking limbo, the Commonwealth of Virginia officially joined the growing list of states taking workplace heat illness prevention into their own hands. With the Governor’s approval of SB 288 on April 13, 2026, the Commonwealth is charting a path toward enforceable heat safety standards for both indoor and outdoor private‑sector workplaces, even as a federal rule remains incomplete.

While the Virginia rule will not take effect immediately, employers should view this legislation as an early warning—and an opportunity—to begin developing heat illness programs.

Core Areas for New Heat Illness Regulations

SB 288 does not establish specific exposure limits or prescriptive controls. Instead, it directs the Virginia Safety and Health Codes Board to develop formal heat illness prevention standards by May 1, 2028. Those standards will apply broadly across industries and will address work performed in both indoor and outdoor workplaces

The real regulatory impact will unfold during the rulemaking process over the next several years. However, the statute specifically mandates that the new VOSH regulations must require employers to provide:

  1. Water,
  2. Access to shade or climate-controlled environments when practicable,
  3. Rest periods,
  4. Acclimatization to working in heat,
  5. Effective training regarding heat illness prevention,
  6. Heat and high-heat procedures when the temperature equals or exceeds heat thresholds to be set by the Board at a future date, and
  7. Effective emergency response procedures.

These core elements are consistent with existing heat illness prevention standards in California, Maryland, Minnesota, Nevada, Oregon, and Washington, as well as long-standing, but unofficial, heat illness guidance from federal OSHA.

The statute specifically excludes a range of emergency services and heat exposure lasting no longer than 15 consecutive minutes.

The Temperature Threshold Question

One of the most important open questions in Virginia is what temperatures trigger initial and “high-heat” protections. States that already regulate heat exposure have taken different approaches, using a mix of ambient temperature, heat index, or industry‑specific thresholds.

Virginia regulators will need to strike a balance between protecting workers from heat‑related illness and fatalities; and crafting a rule that is enforceable across industries.

This same challenge has slowed progress at the federal level, where OSHA’s progress on a national heat standard has stalled at the rulemaking stage. The uncertainty around federal timing and scope was a key reason Virginia paused its own heat rulemaking back in 2021. This time, the Commonwealth is not waiting.

Recommendations

Under the OSH Act’s General Duty Clause, heat illness can be a recognized hazard when employees are exposed to high temperatures. Although Virginia’s final heat illness rule is years away, employers already are required to protect employees from recognized hazards under the General Duty Clause. Virginia employers would be wise to develop or implement existing heat illness prevention programs this spring to reduce the risk of employee injury and illness. Reasonable preparatory steps could include:

  • Reviewing current heat illness prevention policies (or drafting them if none exist)
  • Identifying work tasks and locations with elevated risk of heat exposure
  • Ensuring hydration, shade, and rest practices are documented and consistently applied
  • Training supervisors to recognize early signs of heat illness
  • Ensuring emergency response protocols are understood and implemented
  • Monitoring rulemaking activity and participating in stakeholder input when available

Federal OSHA updated its Heat National Emphasis Program on April 10, 2026, emphasizing that heat hazards are no longer a temporary or emerging concern, even extending the NEP by five years, through 2031. The revised program keeps the basic framework of the original 2022 NEP but reflects a sharper, more data-driven enforcement approach with a clearer roadmap for issuing citations. OSHA has also refined industry targeting based on injury and fatality data, with increased attention on indoor heat risks, warehousing, construction, and transportation.

For employers, the smartest approach is proactive, not reactive. Heat illness prevention is no longer an emerging concept; it is rapidly becoming a baseline expectation across the country.

If you are evaluating whether to implement a heat illness program or need a multi‑state compliance strategy, the Seyfarth Workplace Safety & Environmental team is ready to assist.

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:

  1. Third-party involvement that may increase scrutiny, introduce adversarial dynamics, and expand the scope of inspector inquiries.
  2. Less control over who enters their worksite during inspections.
  3. 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.

Seyfarth Synopsis: California and New York will soon be requiring Narcan in some workplace first aid kits. While Narcan provides a meaningful, prompt, and potentially lifesaving response to opioid overdoses, effective implementation of a Narcan program may require employee training and an expanded first aid response structure.

The Centers for Disease Control and Prevention (CDC) estimated 54,000 to 57,000 opioid‑related deaths nationwide in 2025. Narcan (Naloxone) provides a potentially lifesaving solution to opioid overdoses that is simple to administer and has a very low probability of harming the recipient. No federal or state laws currently require Naloxone (Narcan) for first aid purposes outside of certain health care environments. Litigation exposure associated with offering Narcan remains limited, both because workers’ compensation laws cover most employee claims and because many states extend immunity through Good Samaritan statutes. Recent legislative activity in New York and California, however, signals growing regulatory interest, and employers should understand how these laws operate and consider whether Narcan can help protect employees.

1. Naloxone Offers Clear Life‑Saving Benefits

Naloxone (brand name Narcan) is an FDA‑approved, over‑the‑counter nasal spray used to reverse opioid overdoses. Opioid overdose causes:

  • respiratory arrest
  • cardiac arrest
  • and potentially death

According to 2024 guidance from the CDC, prompt Narcan administration dramatically increases overdose survival rates.

2. Opioid Risks Remain Prevalent Among Working‑Age Adults

While opioid positivity rates in employment drug tests have declined over the last five years, they remain elevated compared to historical norms. See https://www.questdiagnostics.com/content/dam/corporate/restricted/documents/drug-testing-index/DTI-2025-Tables.pdf.  Accordingly, risks of opioid use, positivity, and workplace overdose remain elevated in many workplaces.

3. Narcan Is Safe, Low‑Risk, and Simple to Use

Per 2024 CDC guidance, the Narcan nasal spray format is straightforward to administer and extremely unlikely to harm a person who is not experiencing an opioid overdose. Emergency medical technicians (EMTs) universally carry naloxone, and their response often follows workplace administration.

4. No Federal Requirement to Stock Narcan—But NIOSH Provides Helpful Guidance

There is no federal OSHA standard requiring employers to stock naloxone or maintain opioid‑response programs. However, NIOSH published a non‑mandatory factsheet for employers evaluating the use of Narcan onsite that remains available. See https://www.cdc.gov/niosh/docs/2019-101/pdfs/2019-101.pdf. The guidance highlights considerations such as hazard assessments, responder training, PPE, and integration with existing emergency plans.

5. New York’s New Narcan Statute — and Its Dependence on Federal OSHA Requirements

In 2025, New York enacted Labor Law § 27‑f, requiring employers to maintain an “opioid antagonist” (e.g., naloxone) in their first aid supplies, but only when the employer is “federally mandated to have first aid supplies readily available for the treatment of all employees.” N.Y. Labor Law § 27‑f.

The federal mandate limitation means employers who are required to provide first aid services, normally covering rural facilities. New York’s Senate Bill materials clarify that “federally mandated” refers to workplaces where OSHA requires first aid kits. But OSHA only mandates first aid supplies when medical services are not available in “near proximity.” Under 29 C.F.R. § 1910.151(b), an employer must maintain “adequate first aid supplies” when no hospital, clinic, or infirmary is nearby, and when employees are designated and trained to provide first aid.

Many employers maintain aid kits and allow self‑care or Good‑Samaritan assistance but do not operate formal first aid response teams. Such employers have a strong argument that New York’s statute does not obligate them to stock Narcan.

6. California’s Forthcoming Cal/OSHA Regulations

On September 27, 2024, California Governor Gavin Newsom signed Assembly Bill (AB) 1976, On September 27, 2024, California Governor Gavin Newsom signed Assembly Bill (AB) 1976, requiring Cal/OSHA to implement a standard requiring workplace Narcan. Before December 1, 2027, Cal/OSHA must submit a draft rulemaking proposal to the Standards Board to revise regulations on first aid materials and emergency medical services, to require first aid materials in a workplace to include Narcan (naloxone).  The Standards Board is required to adopt revised standards by December 1, 2028.  While California has not yet issued proposed language, the direction is clear: the state intends to impose some form of Narcan‑related requirement via Cal/OSHA regulation.

For multistate employers, these emerging state trends warrant careful monitoring—especially given California’s track record of influencing national safety expectations, and the track record of Cal/OSHA officials becoming federal OSHA leadership during Democratic administrations.

7. Employers Should Review Their Injury and Illness History

For employers who wish to better understand potential benefits from adding Narcan (Naloxone) to first aid kits, we recommend assessing:

  • known overdoses
  • suspected overdoses
  • EMS calls referencing drug events
  • five‑year trends

A history of prior incidents may support the addition of Narcan (Naloxone) voluntarily as part of a broader first aid and emergency‑response strategy.

8. Safety Considerations for Employees Administering Narcan (Naloxone)

Employers need to protect employees who respond to overdose incidents and attempt to administer Narcan (Naloxone). Responders who administer Narcan (Naloxone) may encounter:

  • powder or liquid opioids
  • unsafe environments
  • respiratory hazards
  • the need for PPE (gloves, masks)
  • the need to perform cardio-pulmonary resuscitation after administration

If administering Narcan becomes part of responders’ assigned duties, OSHA may require compliance with the Bloodborne Pathogens (BBP) standard. Most employers with designated responders already maintain BBP programs, but others may need to expand training.

9. Tort Liability Remains Limited

Individuals who become injured or ill during an administration of Narcan (Naloxone) could bring tort or worker’s compensation claims against the employer. Worker’s compensation claims may be limited by the compensability of drug overdose under state law. Potential negligence claims related to Narcan administration (or failure to administer it) are mitigated by:

  • Workers’ compensation exclusive remedy –> employees generally cannot bring tort claims for workplace injuries.
  • Good Samaritan protections –>Most states provide robust immunity for individuals who respond in good faith to suspected overdoses.

Contractors and non-employees could theoretically pursue negligence claims, but Good Samaritan statutes and the high threshold for proving causation make such claims unlikely to succeed.

10. Additional Employer Recommendations

New York’s Narcan requirement applies only to employers federally mandated under OSHA to maintain first aid supplies—a narrow category that often excludes urban, suburban, and in-town worksites. California is moving toward a similar requirement, but rulemaking may be two years away. Although no federal mandate exists, employers may still find value in voluntarily adding Narcan (Naloxone) to first aid kits, provided they implement appropriate training and hazard‑mitigation measures. Many employers with industry-leading safety programs have adopted Narcan (Naloxone) at their worksites in recent years.

If you are evaluating whether to implement a Narcan program or need a multi‑state compliance strategy, the Seyfarth Workplace Safety & Environmental team is ready to assist.

Our OSHA Practice Group wrapped up the final full day of the ABA Workplace and Occupational Safety and Health Law Committee’s Midwinter Meeting in San Juan with sessions that took a deep dive into the future of AI in safety, trial advocacy in OSHA litigation, necessary modernization of longstanding OSHA standards, and the ethical landscape surrounding inspections and citations. Here are our key takeaways from Friday’s programming.

AI and Safety: The Good, the Bad, and the Really Ugly

The morning opened with a discussion on the rapid integration of artificial intelligence into workplace safety programs. Panelists explored how employers are experimenting with AI tools for hazard identification, PPE detection and enforcement, real‑time alerts, and even predictive modeling of worker behavior—functions sometimes referred to as agentic AI.

But the enthusiasm for innovation came with caution. Panelists emphasized several legal and practical risks:

  • Discoverability: AI‑analyzed videos and data streams documenting conduct in the workplace may be subject to disclosure in an OSHA inspection or in litigation, raising the risk of OSHA using the data to issue additional citations.
  • Privacy & Employee Relations: Employees increasingly express concerns about over‑surveillance and whether AI, rather than a human, is making decisions that affect safety compliance and discipline.
  • Ethical & Transparency Concerns: Employers should communicate clearly about what data is being collected, how it is being used, and how accuracy will be validated. Over half of U.S. states have biometrics privacy laws, which regulate how biometrics information may be obtained, stored, and used.
  • Regulatory Guardrails: With potential federal and state restrictions on AI use, companies should consider early adoption of internal “guardrails” for responsible implementation.

The overall message: AI can enhance safety but requires careful planning, thoughtful roll‑out, and attention to employee trust and legal exposure.

Tips on Direct and Cross Examinations: Getting Admissions

The next session offered a practical and engaging look at trial techniques through a mock direct and cross examination. Panelists provided a number of takeaways for practitioners preparing witnesses for OSHA‑related proceedings:

Direct Examination

  • Use the “perimeter technique”: outline the story, then fill in the details.
  • Ask open‑ended questions—who, what, where, when, how, and occasionally why.
  • Know your forum: ALJs, juries, and judges respond differently to emotional versus record‑driven presentations.
  • End with a strong point that reinforces your theory of the case.

Cross Examination

  • Begin with clear, foundational facts and build your narrative from there.
  • Recognize your goal—creating a record versus eliciting emotion.
  • Avoid unnecessary aggression. In the OSHRC context, professionalism and respect are especially important.

The session reinforced that preparation, clarity of purpose, and audience awareness remain central to effective advocacy.

Modernization of Standards: LOTO, Machine Guarding, and Fall Protection

As workplaces adopt more advanced automation, this panel highlighted the widening gap between OSHA’s aging standards and today’s technology‑driven operations. Much of the discussion focused on lockout/tagout, where OSHA’s rules still assume a world of simple machinery and fail to reflect cutting edge robotics, modern interlocks, two‑hand controls, and integrated safety control systems.

Panelists also noted the growing divide between federal and state activity. While federal rulemaking inches forward, states continue to move faster on issues like heat illness, ergonomics, and workplace violence, creating a patchwork of expectations for employers.

Technology’s role in enforcement sparked debate as well. Some speakers pointed to the likelihood of OSHA using more electronic injury data and predictive tools, while others questioned how transparent and challenge‑proof such methods would be.

Underlying these topics was a broader tension between prescriptive rules and performance‑based standards. With technology evolving faster than regulation, panelists questioned how long older standards can stretch before they must be rewritten. From a litigation standpoint, several noted that defense counsel may increasingly argue that outdated regulations offer insufficient “fair notice” when applied to modern equipment.

Inspections and Issuing Citations: Ethical Obligations of Inspectors (Ethics)

The final session of the day took a close look at the ethical framework governing OSHA compliance officers (CSHOs) during inspections.

Panelists explained that the OSH Act, OSHA’s regulations, and the Field Operations Manual (FOM) collectively outline how inspectors must plan, conduct, and document inspections. The panelists, who all previously served in government roles, highlighted several important points, from the government’s perspective:

  • Pre‑Inspection Planning remains critical for ensuring both fairness and efficiency.
  • Process Integrity: The FOM and supplemental directives create guardrails for how hazards are documented, how evidence is collected, and how citations are issued.
  • Post‑Inspection Practices: Some attendees noted recent trends, such as closing conferences conducted by email or skipped entirely. Panelists suggested that employers escalate such concerns to the Area Director if necessary.
  • Instance‑by‑Instance Citations: The panel discussed when multiplying violations may be appropriate and when doing so might risk ethical overreach.

This session underscored the importance of understanding the procedural and ethical boundaries that guide enforcement activity.

We appreciated the thoughtful discussion throughout the week and look forward to monitoring how these emerging issues—AI integration, standard modernization, trial techniques, and enforcement ethics—continue to shape OSHA practice in 2026 and beyond.

If you’d like our team’s deeper analysis or help preparing for any of these developing trends, we’re always happy to connect.

We are back in San Juan, Puerto Rico for Day 2 of the American Bar Association’s Workplace and Occupational Safety and Health (WOSH) Committee Midwinter Meeting. Today’s sessions featured a diverse mix of experts—behavioral psychologists, management and employee-side attorneys, consultants, and industry representatives—discussing workplace violence, settlement strategies, drug and alcohol challenges, newly-proposed regulations, and broader organizational issues affecting OSHA practice.

Report from the ABA Section of Labor and Employment Law

The morning opened with remarks from leaders within the ABA Section of Labor and Employment Law, who highlighted the Section’s structure, ongoing initiatives, and opportunities for involvement beyond the WOSH Committee. They emphasized the Section’s inclusive governance model, its student advocacy programs, and its expanded resources—including a growing podcast series and development fund aimed at increasing membership.

Workplace Violence and Threat Assessment

The first substantive session of the day dove into workplace violence, featuring a detailed Q&A with Dr. Russell Palarea, a threat assessment expert. The discussion explored what factors influence violent behavior—including anger, financial strain, ideology, notoriety, or delusional beliefs—and clarified that behavioral threat assessment is not about “predicting” violence but understanding probabilities along a continuum of escalating stressors.

Dr. Palarea walked through key models such as the Secret Service’s targeted violence principles, the Calhoun & Weston “Path to Violence” model, and his own “Violence Vortex,” which charts how stress may evolve into anger and action. The panel also emphasized the importance of holistic threat assessments—incorporating organizational, social, psychological, physical, and legal factors—and the need for employers to share relevant information when concerns arise. Finally, the panel discussed boundary-setting, the strategic use (or non-use) of restraining orders, and how police presence can either diffuse or escalate a situation depending on context.

Getting to Settlement: Innovative Strategies to Resolve Complex Cases

The next panel examined settlement dynamics in OSHA matters, highlighting OSHRC’s encouragement of mediated resolution and the practical realities of navigating settlement discussions with government agencies. Former agency officials described institutional resistance—particularly among some enforcement personnel—to reducing large penalties, even where employers offer robust enhanced abatement directly (positively) affecting employee safety.

Panelists also noted challenges associated with escalated review by Regional Solicitors, the emotional dynamics that clients bring to settlement, and the impact of “public shaming” through press releases. The discussion underscored the importance of reframing abatement measures in terms of worker safety, building trust between parties, and leveraging soft skills to reach resolution—particularly in the aftermath of tragic incidents where emotions run high.

Breakout Session: Drugs and Alcohol in the Workplace

One of the breakout sessions focused on the complexities employers face balancing workplace safety with ADA considerations when drug and alcohol issues arise. The panel outlined the tension between drug testing programs and legal protections afforded to employees—emphasizing that while the ADA does not protect current illegal drug use, it does protect employees using prescribed medications that may impair function.

Key takeaways included:

  • Positive tests for legal, prescribed drugs may trigger the duty to engage in the interactive process.
  • Employers must maintain confidentiality regarding accommodations.
  • Potential claims arising from drug-use-related issues include ADA discrimination, privacy claims, retaliation, tort liability, and OSHA or PAGA actions.
  • OSHA does not have a general drug/alcohol rule, but General Duty Clause citations remain possible.
  • The unpreventable employee misconduct defense may apply where employers can demonstrate all required elements.

Breakout Session: SVEP and VPP

The SVEP and VPP breakout panel’s takeaway was simple: now is the moment to sit down with OSHA leadership and tune up both SVEP and VPP so they work the way the regulators and employers need them to. On SVEP, the group flagged due‑process issues that stem from the program’s status as an OSHA policy (not statutory or regulatory), the unconstrained agency discretion, and the limited paths to challenge a designation. The panel urged revisiting the triggers so SVEP truly captures chronic bad actors (e.g., egregious or willful/repeat patterns) instead of tagging a company with an otherwise strong safety record after a single bad day. As a reminder, the current instruction keys eligibility to willful/repeat/failure‑to‑abate findings in fatality/catastrophe cases, at least two willful/repeat high‑gravity serious violations in non‑fat/cat cases, or any egregious case. The panel also called for sensible alignment of consequences and “exit ramps” such as mandatory follow‑ups, public posting on OSHA’s SVEP log, and removal that incentivize real programmatic fixes without branding good‑faith employers indefinitely. On VPP, the consensus was a need for modernization and relaunch with clearer, faster on‑ramps for multi‑site employers, stronger verification around SHMS and leading indicators, and a coherent interaction with SVEP so that one serious incident doesn’t automatically upend a robust, top‑tier safety program.

Heat Illness and Air Quality: State-Level Challenges and General Duty Clause Enforcement

The afternoon panel turned to heat illness—a topic that has gained national attention as OSHA continues its long‑running effort to promulgate a federal heat standard—and other unique regulations such as wildfire smoke exposure. Federal OSHA has never issued a heat stress regulation, but on August 30, 2024, the agency published a proposed rule, followed by a notice-and-comment period that closed just before the start of the Trump Administration. The proposal drew significant engagement, including 12 days of public hearings throughout the summer of 2025. The proposed standard would require employers to implement a written heat illness and injury prevention plan, adopt temperature-based triggers for protective measures, and utilize control strategies such as increased rest breaks, a buddy system, work area modifications, and hazard alerts.

OSHA also issued a Heat Illness Prevention National Emphasis Program (NEP) in April 2022, which provides guidance for inspections of indoor and outdoor worksites in high‑risk industries, emphasizing water, rest, shade, training, and acclimatization as core controls. On “heat priority days” (local heat index ≥ 80°F) and during National Weather Service heat advisories, OSHA will ask about employers’ heat programs during inspections and may conduct programmed inspections in targeted sectors. Extended through April 8, 2026, the NEP runs in parallel with OSHA’s heat‑rulemaking efforts and continued use of the General Duty Clause to address serious heat hazards now.

In the absence of a federal rule, state plans have taken the lead. California pioneered both outdoor and indoor heat standards. California’s outdoor heat protections apply year‑round and activate a heightened “high heat” protocol when temperatures become extreme. For indoor heat, the regulation includes clear triggers—82°F for initial protections and 87°F for escalated controls.

Panelists noted, however, that enforcement is challenging. California enforcement data showed that out of roughly 100 indoor heat investigations, only seven resulted in citations, underscoring the difficulty of recreating temperature conditions during an inspection after an employee complaint. Maryland, Minnesota, Nevada, New Mexico, Oregon, Illinois, and Washington, and other states, have enacted or proposed heat rules of their own, but each uses different temperature thresholds and requirements. As a result, compliance in one state—particularly California—does not guarantee compliance elsewhere and the variety of enacted and proposed regulations could pose substantial challenges for employers.

We are in San Juan, Puerto Rico for the American Bar Association’s Workplace Occupational Safety and Health committee’s midwinter meeting. Today’s sessions featured panels of employer and defense attorneys, representatives from various non-profit organizations dedicated to workers safety, and state regulatory agencies discussing the impact of recent deregulation, discrepancy in inspections and enforcement, and the evolution of state plans.

Less Enforcement in 2025/Deregulation

The day’s first panel discussed deregulation and enforcement trends by federal OSHA across the country, with some (disputed) data showing a drop in enforcement. The panel first focused on deregulation by the federal government. The panel highlighted the current administration’s well-publicized 10-to-1 deregulation approach. For those unfamiliar, the President signed an executive order that requires an agency to identify at least 10 existing rules, regulations, or guidance documents to be repealed each time it promulgates a single new rule, regulation or guidance. The panel stated that the methodology in deciding what is actually repealed is unknown, but suspect that deregulation may be a contributor to less enforcement from federal OSHA.

The panel also discussed the government shutdown in 2025 and the slowdown it created on federal OSHA. The panel noted that even in the present, many federal OSHA staff have not been able to catch up from the backlog they face from the shutdown. Some members of the panel noted that companies have not expressed or observed a slowdown. This is a trend that should be closely monitored in 2026.

There are proposals to deregulate some long-standing OSHA regulations and initiatives. For example, there is a proposal to no longer have the General Duty Clause apply in certain sectors, such as sports, entertainment, and hazard-based journalism. The panel believes this proposal is intended to clarify when the General Duty Clause applies but does not remove an employer’s duty to provide a safe workplace. Rather, it seeks to stop OSHA from citing hazards that cannot be eliminated without destroying the activity’s purpose.

Inconsistencies in Inspection Documentation and Witness Testimony

The panel highlighted a key issue that has persisted in many OSHA inspections and hearings: inconsistency in the CHSO’s notes from the inspection contradicting what a witness testifies at a hearing. The panel highlighted how in one recent case, the CSHO’s notes were not reflective of the witness’s testimony. The Administrative Law Judge ended up giving more weight to the witness’s testimony than the CSHO’s notes because the training records supported what the witness was saying. This is a good reminder for employers to identify whether what the CSHO summarizes in their notes accurately reflets employee interviews.

State Plans

State plans are moving to mirror federal OSHA’s position on important issues. Federal OSHA renewed its National Emphasis Program on heat injury and illness prevention in the Spring of 2025. Maryland is now the first state on the East Coast with a heat standard, enacted in 2024. California, Nevada, Oregon, and Washington have heat-related provisions on the West Coast. Virginia introduced legislation to have a heat standard by 2027. Regarding workplace violence, Maryland now requires public sector employers to have workplace violence policies by 2026.

Operationally, the panel noted there are challenges for state plan states related to investigations and enforcement. A major issue, which has been an issue for some time now, is staffing. In California, a consequence of the shortage issue is that Cal OSHA has not met their citation benchmark per federal OSHA’s audit of the state plan. The audit also found that Cal OSHA has poor documentation of hazard abatement. Something big to expect in the future for California is their version of the Worker Walkaround Rule. California’s goal is to mirror federal OSHA, but their current proposal to allow third parties in the inspection so long as they are deemed “reasonably necessary.” “Reasonably necessary” is based on relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills, and exceeds the equivalent federal provision.

We will continue to provide updates throughout the week.