Safety Basics XVI: State Plans vs. Federal OSHA—Key Compliance Insights

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John Surma: Welcome back everybody. This is the Ogletree Deakins Safety Basics series. This is a series of 17 podcasts that relate to various topics on occupational safety and health. There is a corresponding or companion webinar series, there’s also a corresponding series of blog posts. Today, I have with us the West Coast’s Karen Tynan, and Karen Tynan is going to be talking to us about all things relating to state plans. Karen, welcome aboard today. Appreciate you joining us.

Karen Tynan: Well, thanks. I do a lot of work in the state plan state, so thanks for inviting me, John.

John Surma: Oh, you’re welcome, you’re welcome. Karen, let’s start with a real basic question, especially for folks that have “lived their lives” in federal OSHA states. Can you explain what exactly a state plan is and why we should care about what state plans are?

Karen Tynan: Thanks, John. So, the state plan states are approved by fed OSHA, and they have their own plans. And so, when you look at a map, if you go to the fed OSHA website, and you say, “What are the state plan states?” You get a really cool map with dark blue, medium blue, light blue. And the state plan states use fed OSHA as more of a floor, not a ceiling but a floor, and they can choose to have regulations that are more vigorous than, in addition to, all along that line.
And with your state plan states, it’s critical to remember that there are going to be some differences. And so, especially if you’re a multi-state employer, you are going to care because let’s say you have a facility in Texas, which of course, John Surma is there, my favorite colleague, but that’s a fed OSHA state. Well, if you have a facility in Texas and also a facility in Washington, and you think that, oh, well, it’s all going to be the same, we’ve got the same machines. Well, there may be some differences in the regulations.
So, I think it is critical for people to know if you are in a state plan state or a fed OSHA state and what those differences are, so that you can provide advice, so that you can make sure you’re compliant. And if you get an inspection or citations, you’re prepared for those differences in those state plan states, John.

John Surma: Well, thank you, Karen. And you hit on something there at the very end, and it’s this awareness and the fact that if you’re in a state plan state as opposed to federal OSHA state, the types of things that you might anticipate and might encounter might be different. But before we get into those nuances, and I think we’re going to work our way to that, you mentioned early on in your response the approval process. You didn’t mention the monitoring process, but I think our audience would gain some value and gain some understanding if you could explain how those programs are both approved and monitored by federal OSHA, after application is made.

Karen Tynan: Sure, so there is a fed OSHA approval process, and for most states, they were approved in the ’70s, maybe early ’80s because fed OSHA of course came into being in the ’70s, right? And so, some states immediately jumped in and said, “We’re going to have our own plan.” And so, there is a particular approval process, and there’s monitoring. And I think it’s critical to understand the monitoring process that fed OSHA does with these state plans to make sure that the state plans are at least as effective as fed OSHA. And we’ve had a few states that there have been some bumps along the way.
People may remember a few years ago, Arizona was called on the carpet through the monitoring about whether their state plan was at least as effective as, whether they were running it properly. There have been issues in California around fall protection regulations. Are the California fall protection regulations at least as effective as? Also, if you look at fed OSHA monitoring states, they monitor the inspection process, how the appeals are handled, and run the numbers. And there was a time a few years ago also where California got in trouble for how long it was taking cases to get to trial. So, that approval and monitoring process, it’s not in the news every day, but knowing if the feds are monitoring and have called a state plan out for an issue is important, I would say, for safety professionals, for folks who are really trying to comply, understanding what is happening in your state plan is important.

John Surma: Oh, absolutely. I mean, no different than at any level of OSHA, knowing what’s going on is critical to not stumbling and falling. Can you speak a little bit, because I know there’s some nuances and some differences here, about recording and reporting and any similarities and differences between federal OSHA and state plan states?

Karen Tynan: Well, I think it’s important to realize, let’s talk about recording, and then we will talk about reporting. So recording, because you’re doing it on the federal form, look, it’s all the same, recording the injuries, right? And state plans must follow 29 CFR Section 1904.37(b)(1) for recording injuries and illnesses. Boom, recording’s the same. So, if we go back to our example, you have a facility in Texas, a facility in Washington state, your recording is going to be the same. But let’s talk about reporting. When you report that serious injury or fatality, it can be different in these state plan states. And I want to peel that back a little bit, John, because I’ve seen folks get into a little bit of trouble with that over the years when folks assume that reporting an injury is exactly the same in Oregon, let’s say, as it would be in Georgia or Florida.
So, I want to talk about that a little bit. But for example, California has a shorter time to report. You’ve got eight hours. They also in the reporting include injuries at the work site or in the course of work, I’m paraphrasing. So, if you have someone who happens to suffer a non-work-related injury at a work site, that’s going to be reportable. A nuance in Oregon is that reporting there includes incidents on public thoroughfares, public highways. And so, when we’ve had people driving to the show-up, say for a tree trimming company, an electrical contracting company, you’re driving to the show-up, and then you get your work together and then you drive from the show-up to the job site, and you’re on a freeway and something happens, there’s an accident. That’s also going to be reportable in Oregon.
So, what I like to do is whenever we have a question on reporting in a state plan state, just to make sure I’m being 100% accurate, that I’m right, I always just pull up that state’s reporting webpage where it’ll give very specific instructions, like some states you can report in an email, others, it’s all on the phone. So, make sure when you’re that multi-state employer or you have a facility, you have workers in those state plan states, that you’re very up on your reporting.

John Surma: Thank you, Karen, and I think you’re absolutely right about that. And I mean, look, worse come to worse, I mean, absolute fail-safe is you can always call (800) 321-OSHA and report, albeit that’s not necessarily the most efficient way to do it. It is kind of the catch-all, and unfortunately, it doesn’t give you much guidance in terms of what incidents are reportable and what incidents are not. And you mentioned the difference in take for instance, California in a shorter period of time. There’s also a little broader net in California in terms of what actually has to be reported in California versus what has to be reported in a federal OSHA state.
Let’s change gears a little bit and talk about everybody’s favorite topic, and that’s inspections. Could you give us a flavor of what’s different in state plan states versus federal OSHA states?

Karen Tynan: Sure, and I like to talk about this because employers can sometimes say, “Well, I had an inspection in Kansas, and it went this way. And why isn’t the inspection in Nevada going that way?” Well, because Nevada is a state plan state. So, I’d like to talk about some of the differences in inspections. First, the way document requests happen can be very different in an inspection, whether it’s off of a particular form or how documents are asked for or how broad the documents are. So, being aware of how you’re going to handle a document request in a state plan state. Do they use subpoenas, or do they ask for documents informally? It’s important to know.
Also, state plan states can vary in how they go out and start inspections or how they ask to interview workers, how much they want unions to be involved, right? California, they always ask during an inspection, “Oh, do these workers want the union present?” I would say that there’ve been other states that aren’t quite as aggressive in asking the unions to be present. And how those inspections go, as far as the timelines, I would say in Nevada, another great state plan state with our colleague Noel Hernandez out there, the tone and tenor and pace of those inspections, they start out with a lot at the beginning and then the inspector goes quiet and then boom, you’ve got citations.
So, for multi-state employers, think about the states you’re working in and what those differences are. One thing I like to do, little secret, I look up the policy and procedure manual for that state. So, for example, Washington, they call it L&I there, Washington OSHA, they have a policy and procedure manual that lays out exactly how these inspectors are supposed to handle inspections. California has the same, its own policy and procedure manual. So, I think that’s a little bit of a trick and it can help you know the pace of the investigation, the tools they’re going to use, and the procedures that the inspector is supposed to comply with.

John Surma: I like how you add at the end, supposed to comply with.

Karen Tynan: You caught that.

John Surma: Yeah. So, I’ll leave the comments at that, but I like how you added that at the end. Well, I mean, look, if we talk about inspections, we kind of have to also talk about the corollary citations. Do they look different? Can they look different in a state plan state, as opposed to a federal OSHA state?

Karen Tynan: Absolutely, and this is another, I would call it a pitfall that can happen, is when a company, maybe they’re very familiar, they’ve been operating in, let’s go back to Texas, you’re stomping grounds, right? So, they’re used to seeing these fed OSHA citations, boom, boom, boom. Well, now they’ve got an operation, let’s pick Michigan. Well, the citations look different. The instructions with the citations look different. The posting instructions, the documentation of abatement can be different, penalty reduction processes, different.
And so, what I like to say is making sure that when you get that citation packet in your state plan state, that you really take the time to read it and understand it. The instructions are critical, every state except one has 15 working days to appeal, there’s another state out there that’s 30. But the 15 days to appeal is the same, but the instructions around appealing, asking for informal conferences, abatements, paying penalties, everything else can be very different. And so, just because you’ve handled a citation either in another state or under a fed OSHA state, you really have to look for those instructions and those nuances, that can vary. And I’ve seen folks get into a little trouble thinking, oh, this is all very generic, and it’s just like the fed OSHA citations, and I’m going to send in a notice of contest and then have this informal conference before I do that, blah, blah, blah. And it can be very different.

John Surma: Oh, you’re absolutely right about that. And that is one in a whole series of how things are different. Let’s talk about another thing or other things that are different in a lot of state plan states. And I guess we should kind of clarify for the audience, and I mean I think it’s implicit, but I just think it’s maybe imperative that we make it completely explicitly clear. This varies state-to-state, it’s not state plan, federal plan, one or the other. There’s what, 22 different state plan states?

Karen Tynan: Yeah.

John Surma: And every state plan state can be different. Let’s talk about appeals and notices of conference, or I mean, notices of contest and informal conferences. Can you explain some of the nuances and differences between state plans and federal OSHA?

Karen Tynan: Sure. So, the appeal process, just plain varies from state to state depending on how they view and structure their administrative appeals, right? Because these are state agencies that are enforcing, and then there’s an appeal process.
So, the only state, and I did a little kind of foreshadowing for you guys, the only state that gives 30 days is Oregon, everybody else, 15 working days. But for some appeals, it’s a very simple opening document. Some you need to include all of your affirmative defenses right away. Washington state, I’d call it like a two-step appeal process where you go back for re-assumption and then you go back into a litigation appeal, so you have two times you’re initiating appeal in Washington state. So, the appeal process, you really need to dot your I’s and cross your T’s. It’s not just a matter of checking boxes; you need to be very careful. What are you disputing? Are you claiming employee misconduct? Are you claiming these workers aren’t my employees? So, understanding the appeal process and starting that with the proper filing is critical. We do try to make sure that when we’re practicing in these state plan states that we’re always up on any new procedures, new forms, these portals. Right? Sometimes these states will change the portal where you’re dealing with the adjudicative agency, and so being mindful of that.
I think it’s important to understand in these appeals that, also, you can get litigation orders that from the judges that are going to lay out timeframes. California, no litigation order early in the case. You may get one after your pre-hearing conference or at your pre-hearing conference, but you’re not going to be like in Washington state where you get this litigation order with all these deadlines laid out. So, understanding that process in your state plan state is important.
And then in those state plan states, the process for informal conferences varies wildly, right? California, you can really have an informal conference almost any time. You just make an appointment, you can talk to the district manager or your opposing counsel. Some states, it’s a little more formal. Some states like Nevada, the attorney that handles all the appeals there, everything’s on email, you don’t really get on the phone with her. So, I want your takeaway from this, if you’re a safety professional, you’re that GC, you’re that risk manager handling these, is that being up-to-date and understanding that appeal process and the little nuances within that state’s appeal process is critical.

John Surma: No, I completely agree. And there’s one state that sticks out in my mind, which is Michigan. Michigan, you essentially your first level of appeal is to the agency itself. And then your second level of appeal is a more traditional style appeal, which is a little different than what most folks are used to. From the standpoint of the thing that a lot of folks are hoping to reach, settlement. Could you discuss settlements, along with some of the nuances that are different in a state plan state versus a federal state settlement?

Karen Tynan: And this is another area where multi-state employers sometimes, I don’t want to say struggle, but it’s a little bit of collaboration for them to understand. So, in settlements, some state plan states, and I’m thinking of in the Pacific Northwest in their settlement, they love enhanced abatement. They want to see you have a training day, a safety standdown, things like that as part of a settlement. There are other states, they’re not interested in that, right? They want to know the dollars and what citations you are taking, and that’s it. All this enhanced abatement, they don’t want to keep track of it later.
And so, if you’ve used enhanced abatement with fed OSHA or in another state plan state, you cannot assume that the state you’re in, whether it’s, let’s just use Nevada again as an example, they may not be over the moon for an enhanced abatement. And because you want to have a safety standdown and show what a great employer you are by educating, refreshing workers. And so, making sure that you’re prepared for these different kinds of cultural, I would call, differences, cultural differences in these state plan states with what they’re interested in settlements. And some settlements have more formality in the documents. In California, we send an email to the judge, we lay out the terms, it’s usually about half a paragraph, and the judge knows all the other terms such as the non-admissions clause, the waiver of cost, all that, and so much more simplified process in California.
So, our takeaway on that is, hey, let’s be aware of what the settlement process is in this state and maybe what that agency is looking for in a settlement and what they’re not really interested in, John.

John Surma: Well, Karen, if you can’t reach a settlement, you’re probably headed to trial or a hearing, depending upon what term we want to apply. Could you talk, I mean, certainly there must be some big differences between trials in a state plan versus trials in a federal state.

Karen Tynan: Yeah, and again, it’s much like the appeal process or how cases are litigated in the pipeline. It’s that there are differences. And so, let’s use Washington state as an example. Yes, you’re in front of an administrative law judge, but you are in a courtroom there, or sometimes they’re still doing Zoom up there. You’re in a courtroom, you do have motions in limine, you can have a motion to dismiss in Washington state. A bit more formality up there, I’d call it more like a superior court bench trial. But if you go to California, no motions in limine, no motions to dismiss, no motions for summary judgment. You do trial briefs, but really, I call it a knife fight in a ditch, right? You’ve shared witness lists and documents and that’s it, so you really have to be prepared to pivot.
And trials also can vary, I have a Hawaii trial coming up, John, I know people are very envious, but I’m not going there for fun, I’m going for a trial. And there, you’re in front of a three-person panel. In Nevada, you’re also in front of a panel. In Nevada, it’s a stacked calendar, so there’ll be five of you. Let’s say you’re set for Tuesday at 9:00 and there’s five of you, well, you’re just lined up like airplanes landing and if the person in front of you settles, you move up. So, trials can be very different.
Again, I think it’s much like the citation process, the appeal process. You need to be aware of those differences because you don’t want to fail to understand those differences and be more on your heels. You want to be flexing into those differences and making sure that you’re able to advocate in the process in the most effective way.

John Surma: Well, Karen, as we bring this to a close, I think it’d be helpful for our audience, especially those that play in the 2x mode or faster, if there is such a thing. If you could give an overview, some key takeaways, summary, whatever term you want to apply to it, that safety professionals, risk managers, and general counsels or in-house lawyers can use relating to state plans.

Karen Tynan: I want the biggest takeaway, John, to be that what works in one state or under fed OSHA may not work in the other, so that you can set your expectations. And then when you are dealing in these state plan states, embrace whatever the procedures, whatever you’re going to follow, the processes, know and understand those and be fully aware that hey, in Utah, very different process. And Kathleen Weron’s out there in our Salt Lake City office, and I call her and she’s able to give great hints and tips in that system. So, understanding the system you’re in, I think is critical, making sure you have that awareness.
And then if do get started in the inspection process, in the citation appeal process, making sure that along the way, you’re understanding the differences and working within those differences. And then if you can hopefully get to settlement, we know the vast, vast majority of cases settle. California, it’s like 98% of cases settle. Washington state, we run the numbers, 85% of cases settle. So, in the majority of time with settlement, you just need to understand how the settlement terms are going to work, and don’t set yourself up wanting settlement terms that are just not going to land.
So, I think those are my biggest hints, and I really like the way we’re talking about this because I do think it helps our safety professionals, our risk managers, and those in-house counsel folks who are managing these processes and trying to do the best with the processes.

John Surma: Karen, I think that’s great advice. And as always, I appreciate you joining us for another podcast. This is the 16th of the 17-part series. The 17th part will be on preemption, and we look forward to doing that with Lauren Leonard. In the interim, I hope everybody out there in podcast-landia has a great day, and thank you very much.

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