On April 21, the Occupational Safety and Health Administration (OSHA) proposed revoking its final approval of Arizona’s state workplace safety and health plan (87 Federal Register (FR) 23783). Federal OSHA could resume concurrent workplace safety and health enforcement in the state, as the status of Arizona’s program would revert to initial approval.
The agency has tentatively scheduled an informal public hearing on the proposed revocation, beginning August 16 at 10:00 a.m. ET., that may continue over subsequent days. The hearing will be held virtually on WebEx.
OSHA initiated the action because Arizona failed to adopt the healthcare COVID-19 emergency temporary standard (ETS) that OSHA issued on June 21, 2021. Under Section 18(c) of the Occupational Safety and Health (OSH) Act, states with their own occupational safety and health programs must establish and enforce standards at least as effective as federal OSHA standards.
OSHA monitors state programs and issues a Federal Annual Monitoring Evaluation (FAME) report each year.
In the proposal, the federal agency detailed a “history of shortcomings in the Arizona state plan,” including the state’s failure to adopt the 2021 healthcare ETS. As the state and OSHA discussed the failure to adopt the federal ETS, the Industrial Commission of Arizona said the state could not adopt the ETS based on OSHA’s findings of “grave danger” and “necessity” but would need to make independent findings of “grave danger” and “necessity.”
The section of the OSH Act authorizing emergency rules contains a two-prong test for an ETS: The emergency rule must address a grave danger and be necessary to protect workers from that danger.
OSHA is asking Arizona to clarify how state law complies with the federal OSHA requirement that a state plan adopt a federal ETS within 30 days of its promulgation.
OSHA previously initiated proceedings to revoke approval of Arizona’s state plan. The agency became concerned in 2012 when Arizona’s legislature passed a bill implementing residential construction fall protection requirements that were less effective than the federal standard. Arizona remedied this issue after OSHA initiated revocation proceedings in 2014 and formally rejected Arizona’s fall protection requirements in 2015.
The federal agency contends that Arizona also has been delinquent since 2015 in responding to and/or adopting other items necessary to keep Arizona’s program at least as effective as federal OSHA. In every FAME report since fiscal year 2015, federal officials have included a finding regarding Arizona’s failure to respond to and/or adopt standards and directives in a timely manner.
Failures in the FAME reports for Arizona have included:
- Failure to adopt the National Emphasis Program on Amputations in Manufacturing Industries (CPL 03-00-022) and the National Emphasis Program on Respirable Crystalline Silica (CPL 03-00-023);
- Failure to adopt two occupational safety and health standards: the Beryllium Standard for Construction and Shipyards and the Standards Improvement Project—Phase IV; and
- Failure to adopt penalty levels that are at least as effective as federal OSHA’s.
According to federal OSHA, Arizona has repeatedly failed to meet deadlines for adopting safety and health standards or has provided inadequate documentation of adoption.
Comments on the proposed revocation are due May 26.
The proposal included a list of issues that OSHA considers outside the scope of the proposed revocation, such as:
- Any comment criticizing the regulatory and statutory requirements imposed on
state plans as a condition of their continuous approval to operate a state plan;
- Any comment regarding the wisdom and/or necessity of various federal standards and directives;
- Any comment regarding federal OSHA’s legal authority to promulgate the
healthcare COVID-19 ETS, the advisability of the rule’s promulgation, OSHA’s findings of grave danger and necessity, or any specific provision or requirement of the healthcare ETS; and
- Any comment regarding the withdrawn COVID-19 vaccine-or-test ETS or any litigation that arose from it.