Companion Bills in U.S. Congress Would Expand OSHA Coverage for Public Employees

Quick Hits

• The legislation would amend Section 3(5) of the OSH Act to explicitly include public employees, covering federal, state, and local government workers.
• The amendment would take effect ninety days after the PSWPA’s enactment for most public employees.
• For federal OSHA workplaces of states or political subdivisions, the amendment would take effect thirty-six months after the PSWPA’s enactment.
• The legislation clarifies that it does not alter the application of Section 18 of the OSH Act, which governs state plans.

Currently, the OSH Act generally excludes public-sector employees from its coverage, unless they are employed in states with plans approved by the Occupational Safety and Health Administration (OSHA) that extend protections to public workers. This exclusion explains why, particularly in federal OSHA states, state and local government workers are often observed not wearing personal protective equipment (PPE) required by OSHA or engaging in what would be prohibited conduct if they were covered by OSHA. The proposed amendment would strike the existing exclusionary language in Section 3(5) and replace it with language that includes the United States, states, and political subdivisions as employers under the OSH Act.

The PSWPA provides for a phased implementation. For most public employees, the expanded coverage would become effective ninety days after the date of enactment. However, for workplaces in states or political subdivisions that are in federal OSHA states, the effective date is extended to thirty-six months post-enactment, allowing additional time for compliance and potential development of state plans.

The legislation includes a rule of construction stating that nothing in the PSWPA should be interpreted to affect the application of Section 18 of the OSH Act. Section 18 allows states to operate their own occupational safety and health programs, provided they are at least as effective as the federal program and are approved by OSHA.

If enacted, the PSWPA would represent a significant expansion of federal workplace safety protections, bringing millions of public-sector employees under the OSH Act’s regulatory framework. Public employers, particularly those in federal OSHA states, may want to monitor the progress of this legislation and begin assessing potential compliance obligations.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Workplace Safety and Health blog as additional information becomes available.

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