The federal Occupational Safety and Health Administration (OSHA) is holding off on deciding whether to revoke final approval of Arizona’s occupational safety and health (OSH) plan. On August 10, 2022, OSHA said it is extending the comment period on a proposed rule to revoke the state’s approval for another 60 days and postponed a public hearing tentatively scheduled for August 16, 2022.
On April 21, 2022, OSHA issued a proposed rule to revoke Arizona’s OSH plan’s final approval under Section 18(e) of the Occupational Safety and Health Act of 1970. The move would result in discretionary concurrent enforcement jurisdiction between OSHA and the Arizona Division of Occupational Safety and Health (ADOSH).
OSHA said the additional 60-day comment period will give stakeholders the opportunity to comment on ADOSH’s more recent actions and what “impact those actions should have on OSHA’s proposed revocation” of the state plan’s final approval.
OSHA sought to revoke the Arizona state plan’s approval on the basis that the state’s failure to adopt OSHA’s COVID-19 emergency temporary standards (ETS) for healthcare workers as an “emergency” rule. OSHA further based its proposed rule on its claim that, in 2012, Arizona failed to implement residential construction fall protection requirements and that it allegedly failed to “timely” adopt other various programs of national emphasis.
ADOSH and the Industrial Commission of Arizona (ICA) submitted a comment letter on July 5, 2022, defending the state’s decision not to adopt OSHA’s COVID-19 healthcare ETS as an emergency rule. The agencies said ICA 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 OSHA’s COVID-19 ETS through its normal rulemaking process.
The ICA and ADOSH also defended the state’s OSH plan, arguing that “Arizona consistently outranks most OSHA states in injury and fatality rates” in large part due to Arizona’s ability to understand and focus on “the hazards associated with the industries and companies located within its state.”
OSHA said further notices will be published in the next few days and that it will review any comments before scheduling a new hearing or making any decisions. The deadline for comments was previously extended from May 26, 2022, to July 5, 2022.
Arizona is one of 28 states and U.S. territories, including Puerto Rico and the U.S. Virgin Islands, to have its own state-operated workplace safety and health program approved by OSHA.
Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor and report on developments with respect to OSHA’s proposed rule regarding Arizona’s state OSH plan and will post updates on the firm’s Arizona and Workplace Safety and Health blogs as additional information becomes available.
Ogletree Deakins will also continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.