On April 21, 2022, the federal Occupational Safety and Health Administration (OSHA) issued a a proposed rule to revoke Arizona’s occupational safety and health (OSH) plan’s final approval under Section 18(e) of the Occupational Safety and Health Act of 1970. In its notice, OSHA proposed revoking its affirmative determination granting final approval to Arizona’s state OSH plan, which, if implemented, would return Arizona’s plan to “initial approval” status resulting in discretionary concurrent enforcement jurisdiction between OSHA and the Arizona Division of Occupational Safety and Health (ADOSH). Written comments were originally due by May 26, 2022, but the agency extended that deadline to July 5, 2022.
OSHA bases the proposed revocation on the claims that the Arizona state plan is not “at least as effective as” federal standards. Particularly, OSHA points to Arizona’s alleged 2012 failure to implement residential construction fall protection requirements, alleged failure to “timely” adopt various national emphasis programs, and failure to adopt OSHA’s COVID-19 emergency temporary standards (ETS) for healthcare workers as an “emergency” rule.
State plans are OSHA-approved workplace safety and health programs operated by individual states. Arizona’s state plan is one of twenty-eight state plans authorized by OSHA.
OSHA received 197 comments to its proposed rule. Some notable comments include:
The Industrial Commission of Arizona (ICA) and ADOSH submitted a strongly worded rebuke of the proposed rule questioning “the selective manner in which OSHA has presented ‘the facts’ in the Federal Register notice and [omission of] any facts inconvenient to [OSHA’s] agenda.” ADOSH also defended its decision not to adopt OSHA’s COVID-19 healthcare ETS as an emergency rule by noting that the ICA determined that COVID-19 did not pose a sufficiently grave danger to justify enacting the standard on an emergency basis, thereby “depriv[ing]” the citizens of Arizona of the protections of notice and comment rulemaking. Instead, Arizona’s legislature approved and adopted OSHA’s healthcare ETS through its normal rulemaking process.
The ICA and ADOSH also stated that OSHA has not defined or provided adequate guidance of the definition of the “at least as effective as” standard. The state pointed out that the U.S. Department of Labor’s (DOL) Office of Inspector General concluded in 2011 that OSHA “[h]as [n]o [w]ay to [m]easure the effectiveness of its [o]wn [p]rogram, [l]et [a]lone” the effectiveness of state plans. The state also pointed out if effectiveness is measured by injury rates, the state’s standards are effective as, if not more effective, than national standards. Indeed, “Arizona consistently outranks most OSHA states in injury and fatality rates,” the ICA and ADOSH stated. The ICA and ADOSH argued that “a driving force behind its low rates” is Arizona’s ability to understand and focus on “the hazards associated with the industries and companies located within its state.”
The Arizona Hospital and Healthcare Association (AzHHA) urged OSHA not to revoke Arizona’s plan, responding specifically to issues related to the COVID-19 emergency temporary standard for healthcare workers. The AzHHA commended ADOSH’s response to COVID-19, noting that the agency “acted in good faith to seek clarification on the intersection of the Healthcare ETS with other laws and guidance.” The AzHHA concluded by noting, “In our experience, ADOSH and its staff have shown a strong commitment to protecting employee health and safety while working collaboratively with employers to build a culture of safety in the workplace. This is a balance that builds trust, cooperation, and most importantly advances OSHA’s mission of promoting occupational health and safety.”
The National Association of Home Builders of the United States (NAHB) noted that OSHA’s actions “will have a chilling effect on other State Plans states” that might otherwise consider changes to their state plans. OSHA’s actions could place states in an “untenable position” of assuming that “[a]ny slight deviation” from federal standards puts them at risk of having their state plan status revoked. The NAHB goes as far as describing the proposed actions as “arbitrary and capricious” and doing “a disservice to the purpose behind the Administrative Procedure Act and the rulemaking process.”
On the other side, the National Nurses Organizing Committee/National Nurses United (NNOC/NNU) submitted a comment in support of the proposed action. The NNOC/NNU argued that “ADOSH’s failure to adopt the Covid-19 Healthcare ETS has not only violated the State Plan’s legal obligations, … but it [also] places nurses and other health care workers at significant risk from Covid-19 infection and exposure.” To support its claim, the NNOC/NNU cited to surveys it conducted of its own members but does not cite to rates of COVID-19 infections or fatalities in other states.
The proposed rule is currently set for a public hearing on August 16, 2022.
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.