For most people, the inner workings of Cal/OSHA remain a mystery. I provide here a few insights of how an idea becomes a Cal/OSHA regulation. Cal/OSHA has the exclusive statutory authority to adopt rules to regulate workplace safety and health. The agency does not need legislation to pass new or revised rules. Ideas for new rules may originate within the agency when a deficiency is identified, sometimes due to an unfavorable citation appeal outcome, or a new idea could come from the regulated public (for example, labor groups, employer groups, or manufacturers of new safety equipment). Even though the agency has the authority without legislative mandate to adopt workplace safety rules, sometimes the Legislature wades into workplace safety and mandates Cal/OSHA to adopt specific rules within specific timeframes, particularly when stakeholders are unsatisfied with a lack of or untimely action by Cal/OSHA.
The Cal/OSHA rulemaking process is unique because rulemaking relies heavily on collaboration with stakeholders, and an impressive public comment process. All rulemaking for Cal/OSHA must be brought before the Occupational Safety and Health Standards Board for adoption. This 7-member independent board, all members appointed by the Governor, serve staggered 4 year terms. The board meets monthly in locations around the state to allow stakeholders to come before the board without having to travel, should they choose to do so. Each board meeting includes a portion dedicated to members of the public having the opportunity to come before the board to comment on any matter related to workplace safety and rulemaking.
Generally, the rulemaking process begins with a petition from a member of the public requesting the board review the necessity for a new rule. The board staff and Cal/OSHA review and analyze the petition, and provide along with their analysis, a recommended decision to the board which is public on the board’s website. In many instances, the board approves a request by referring it to an advisory committee, which is a meeting convened by either Cal/OSHA or the board with a group of interested stakeholders. Any member of the public may attend and participate, although sometimes specific individuals are identified as committee members. These are usually all day meetings, and the committee may meet multiple times. Once there is as close to consensus as can be found, staff will initiate formal rulemaking.
The rulemaking process from idea to adoption can take upwards of two years, sometimes as many as 4 or 5 years, depending on the complexity of the proposal and how controversial it is. This year, Cal/OSHA continues work on two very important, controversial, and complex proposals – Indoor Heat Illness Prevention as a result of a legislative mandate, and Workplace Violence Prevention for all industries as a result of several specific industry petitions. We anticipate both rulemakings to be completed and submitted to the Office of Administrative Law this year, prior to a new Governor taking office.
For more information about current rulemaking underway, and to attend an advisory committee meeting check the Cal/OSHA website.