Arizona Gets to Keep Its State-Operated Workplace Safety and Health Program

On February 15, 2023, the Occupational Safety and Health Administration (OSHA) withdrew its proposed rule that would have revoked the final approval status of Arizona’s state plan for occupational safety and health. The decision follows the issuance of a proposed revocation on April 21, 2022, and extensive comments from both sides of the debate. In justifying its decision to withdraw its proposed rule, OSHA cited Arizona’s “actions that address OSHA’s concerns,” including the following:

• Adopting a final rule consistent with OSHA’s Standards Improvement Project Phase-IV, which focuses on updating construction standards
• Adopting a final rule for Beryllium in Construction and Shipyards
• Adopting a final rule for Cranes and Derricks in Construction: Railroad Roadway Work
• Increasing “its minimum penalties for serious and non-serious violations to match OSHA minimum penalty levels”
• Passing a state law authorizing penalties that “will track OSHA’s annual penalty level adjustments”
• Adopting an emphasis program on Amputations in Manufacturing Industries
• Adopting an emphasis program for Respirable Crystalline Silica
• Adopting OSHA’s recordkeeping and COVID-19 log requirements in healthcare as a permanent standard
• Authorizing the adoption of emergency temporary standards (ETS) “when either the ICA [Industrial Commission of Arizona] or OSHA deems the grave danger criteria met”

Perhaps the most interesting part of the bookends of the Arizona/OSHA saga is the issue of emergency temporary standards. It may be saying the quiet part aloud, but OSHA’s attempt to revoke Arizona’s state plan seems in part to have been actuated by Arizona’s refusal to adopt OSHA’s COVID-19 Healthcare ETS. Numerous commenters on both sides of the proposal took strong stances about the propriety of Arizona’s inaction/restrained approach to COVID-19. In the end, Arizona refused to fully comply with OSHA’s demands, instead electing to do just enough to allow the agency to save face.

According to OSHA, Arizona House Bill 2120, enacted in July 2022, “authorize[s] adoption of an ETS when either the ICA or OSHA deems the grave danger criteria met.” The key word being “authorize.” In the July 5, 2022, letter defending the state’s decision not to adopt OSHA’s COVID-19 ETS, the Arizona Division of Occupational Safety and Health (ADOSH) and the ICA stated that the agencies had determined that COVID-19 did not present a sufficiently grave danger to justify enacting the standards on an emergency basis. Arizona’s legislature later approved and adopted the requirements contained in OSHA’s COVID-19 Healthcare ETS through its normal rulemaking process. Ultimately, the decision regarding whether to adopt the next ETS is still entirely at the discretion of ADOSH and the ICA. Thus, it is hard to see how Arizona House Bill 2120 is anything more than an empty gesture.

OSHA has leveled similar threats against other state programs and, like Arizona, those states have yet to flinch in spite of those challenges. One must wonder whether OSHA will similarly withdraw its efforts to decertify those state plans.