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  • Writer's pictureJosh Schultz, Esq.

US DOL Alleges "Pattern of Failures" for Arizona’s State OSHA Plan, Threatens Revocation

The U.S. Department of Labor announced a proposal on April 20, 2022 to reconsider and revoke the final approval of Arizona’s State OSHA plan, alleging a pattern of failures to adopt and enforce standards and enforcement policies at least as effective as those used by OSHA.

On October 19, 2021, OSHA issued a written notice to the Industrial Commission of Arizona, stating it is “reconsidering” its approval of Arizona’s OSHA state plan. This notice was precipitated by Arizona’s refusal to fully adopt the Healthcare ETS OSHA issued for healthcare employers or an “at least as effective as” alternative.

State plans are OSHA-approved job safety and health programs operated by individual states rather than federal OSHA. OSHA approves and monitors all state plans and provides up to 50 percent of each program’s funding. Section 18(c) of the OSH Act requires that these state plans must maintain standards that are at least as effective as OSHA standards. When OSHA establishes a new standard, state plans typically have six months to adopt the new standard. OSHA state plans may enact standards that are more stringent than the correspondence federal OSHA rule, as frequently occurs in California.

Section 18(f) of the OSH Act governs the agency's ability to revoke approval of state plans. The law allows OSHA to revoke approval of a state plan where "there is a failure to comply substantially with any provision of the State plan." OSHA is required to provide notice - which, in the Arizona OSHA case, OSHA published in the Federal Register on April 21, 2022 - and an opportunity for a hearing. OSHA's deadline for comments on the proposal is May 26, 2022. If necessary, OSHA will hold an online hearing on Aug. 16, 2022 at 10 a.m. EDT. Those interested in testifying or questioning witnesses must submit a notice of their intention by May 11, 2022.

If OSHA does revoke approval of the Arizona state plan, the state may retain jurisdiction in most cases commenced before the withdrawal of the plan.

In a press release announcing the proposed revocation, OSHA specifically noted the state's

failure to adopt the COVID-19 Healthcare Emergency Temporary Standard. In the Federal Register notice, OSHA alleged multiple instances in which the Arizona state plan failed to adopt or maintain standards that are at least as effective as OSHA standards. The notice states that in 2012 the Arizona legislature passed a bill which implemented residential construction fall protection requirements that were clearly less effective than the federal requirements. Arizona did not remedy this issue until after OSHA initiated revocation proceedings in 2014 and formally rejected Arizona's fall protection requirements in 2015. Further, OSHA alleges that Arizona has not yet fulfilled its state plan obligation to adopt penalty levels that are at least as effective as those of federal OSHA.

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