Federal OSHA threatened yesterday to revoke the state plans of three states who are refusing to adopt OSHA’s 21 COVID-19 Emergency Temporary Standard covering health care workers. In doing so, OSHA took a major step to ensure that its national COVID emergency temporary standards apply nationally — to every covered worker in every state in the country.
OSHA state plans cover almost half the states. So to paraphrase our President, this is a big fucking deal.
When OSHA was created over 50 years ago, states were given the opportunity to run their own state plans. The feds would fund up to 50% of those programs as long as the states ran programs that were “at least as effective as” the federal program in protecting workers and preventing work-related injuries, illnesses, and deaths. The programs are also required to cover public employees who are not covered by federal OSHA.
“At least as effective” means that the states were mandated to run an effective enforcement program and adopt all OSHA standards (or issue a different standard that was at least as effective as the federal standard.) 21 states (as well as Puerto Rico) decided to develop their own state plans. (States were also given the opportunity to develop “public employee-only state plans where the states would cover public employees and the feds cover the private sector. 5 states — as well as the Virgin Islands — have decided to cover public employees over the past half century.)
What’s the Problem?
State plan states were given 30 days to adopt the June 21 COVID-19 Emergency Temporary Standard (ETS) that covered health care workers. But three states — Arizona, South Carolina and Utah — asserting some warped idea of states’ rights — decided to defy the Occupational Safety and Health Act (OSHAct) and refused to adopt the ETS. Yesterday, federal OSHA told those states to think twice and announced its intention to revoke the state plans and take over workplace safety enforcement in those states.
This action is a shot across the bow of any state that is considering not adopting the forthcoming OSHA ETS that will require that all employees in companies with more than 100 workers require workers to be vaccinated or tested weekly.
OSHA issued a Fact Sheet today outlining its reasoning and sent “courtesy letters” to the three states (Arizona, South Carolina, Utah) reminding them that “If OSHA determines a State Plan with final approval is either unwilling or unable to ensure that its workers receive protections that are at least as effective as the protections afforded to workers in States covered by OSHA, the agency can revoke the State Plan’s final approval.”
According to OSHA’s Acting Assistant Secretary Jim Frederick, “The longer these states refuse to adopt an emergency temporary standard for healthcare workers, the longer they’re needlessly putting thousands of workers at risk of the spread of the coronavirus.”
The three states, as might be suspected, did not agree with Frederick’s reasoning:
Utah Gov. Spencer J. Cox of Utah said in a statement that the state had previously expressed concern to the Labor Department that the rule would place an undue burden on the health care industry. (Fact: OSHA is required to ensure that standard are technologically and economically feasible. The states don’t get to re-examine that decision on their own.)
Utah’s Labor Commissioner Jaceson Maughan recently stated his original intention to run out the clock on OSHA. “It’s doubtful OSHA would start the process to invalidate a state plan. I think there would be multiple letters. multiple requests, a demand that it’s adopted and then some more discussions” Today, OSHA called his bluff and Utah officials are now having second thoughts: “’This complicates our efforts to push back on the federal vaccine mandate,’ Senate President Stuart Adams, R-Layton, said Tuesday.”
Some Utah officials clearly never understood what they signed up for when they adopted an OSHA state plan and the obligations that go along with it: “’It just creates more divisiveness when the feds come in and push their standards on us,’ House Majority Whip Mike Schultz, R-Hooper, said.”
Arizona Governor Doug Ducey characterized “the federal threat to take authority away from Arizona and the other states as a ‘political stunt and desperate power grab’ that falls outside the normal public-comment process for changing regulations.” Arizona claims that it is engage in a “public-input process, encouraging Arizonans from every corner of the state to participate.” Ducey is right that the OSHA emergency standards fall outside the normal public comment process. But the COVID-19 hazard facing America’s workers is not normal. Extensive public comment is valuable and welcome for a normal OSHA standard, but the OSHAct states that an Emergency Temporary Standard bypasses the normal lengthy public comment process because they’re dealing with…an emergency.
South Carolina’s Department of Labor, Licensing and Regulation, Emily H. Farr, expressed disappointment in the action, saying that the state’s program had “proven effective as South Carolina has consistently had one of the lowest injury and illness rates in the nation.” The problem with that statement is that a state’s current injury and illness rate is irrelevant to the law’s requirement to adopt federal OSHA standards
Why Is OSHA Acting Now?
In addition to ensuring that all state plans adopt the June ETS protecting health care workers, this action is a shot across the bow of any state that is considering not adopting the forthcoming OSHA ETS that will require that all employees in companies with more than 100 workers require workers to be vaccinated or tested weekly. That standard is expected to be issued by the end of this month. South Carolina Governor Henry McMaster, for example, has vowed to fight OSHA “to the gates of hell.” (McMaster did not specify which side of the fiery gates he will be fighting from.) The Governor of Tennessee (another state plan state) stated that “The Constitution won’t allow this power grab, and in the meantime, I will stand up for all Tennesseans”.
The longer these states refuse to adopt an emergency temporary standard for healthcare workers, the longer they’re needlessly putting thousands of workers at risk of the spread of the coronavirus.” — OSHA Acting Assistant Secretary Jim Frederick
Meanwhile, at least two-dozen Republican Attorneys General issued a statement threatening lawsuits against OSHA’s forthcoming vaccinate/test ETS, calling the proposed standard “illegal,” “disastrous and counterproductive,” “unlawful and harmful” and a “threat to individual liberty.” Eight of these states (Alaska, Arizona, Indiana, Kentucky, South Carolina, Tennessee, Utah and Wyoming) are OSHA state plan states.
Although some non-state plan states will likely sue to overturn the forthcoming OSHA ETS, the law is clear that federal OSHA has authority to determine workplace health and safety conditions in those states. And it is unclear to legal scholars how far these states will get.
States … probably don’t have legal standing to challenge the rule, according to Georgetown University law professor David Vladeck. “I don’t think it’s going to be easy for a state agency to say I represent the business community here,” Vladeck said. “The business community is perfectly able to represent itself.”
The Death Penalty
While OSHA’s action today shows admirable resolve in the fact of politically motivated recalcitrance, the process of addressing a states defiance is neither easy nor quick. The main tool the Occupational Safety and Health Act gave OSHA to address state plan defiance was the death penalty: stripping the state of its authority to run a state plan. Sounds effective, but there are several downsides:
- If the state plan is revoked, federal OSHA must take over enforcement in the state. This would be a drain on OSHA’s resources because the state plan states currently fund at least 50% of their OSHA programs.
- Public employees who are currently covered by OSHA in the state plans would lose their right to a safe workplace if the state plan is axed.
- The law and accompanying regulations require a complicated regulatory process, including public comment in order to withdraw a state plan or for OSHA to assert concurrent jurisdiction over any sector of a state’s program. This process is time consuming and incompatible with an emergency situation like COVID — especially given that the Emergency Temporary Standard lasts only 6 months (unless extended.) OSHA head Frederick has announced that OSHA will soon publish a federal notice and embark on a 35-day comment period to discuss the revocations.
OSHA has had some success in forcing state plans into compliance. During the Obama administration, federal OSHA threatened to withdraw South Carolina’s state plan when the state announced that it was going to eliminate its OSHA whistleblower program. The state finally relented, largely at the urging of South Carolina’s business community. Business generally prefer state plans over federal jurisdiction because they’re easier to influence than federal OSHA.
Also during the Obama administration, federal OSHA was on the verge of taking over Arizona’s construction sector when the state passed a law refusing to enforce federal OSHA’s residential fall protection standard. The state relented at the last minute.
Why State Plans?
The original idea of state plan states in 1970 was to allow some states that already had workplace safety program to continue administering them, and to provide support for a “laboratory of the states” where innovative state initiatives could chart a path forward for federal OSHA. The “laboratory of the states” concept was largely a failure, with the exception of a few states like California that has several standards that federal OSHA has yet to issue (for example, workplace violence, airborne diseases, and heat.) Other states, such as Washington, Oregon, Michigan and a few others also have standards that are often an improvement over federal standards. Virginia, for example, was the first state to issue a permanent COVID-19 standard.
On the downside, ensuring that state plans are “at least as effective” as OSHA has been a process of herding cats. And federal OSHA has limited resources to keep 26 state plans in line.
Furthermore, there has always been tension between the state plans that would like to consider themselves equal partners with the feds, and federal OSHA to whom the law gives the authority to define and enforce state plan effectiveness.
OSHA conducts an annual evaluation of each state plan, but has a hard time ensuring equivalent effectiveness. Average penalties in most state plans, for example, are significantly lower than the average federal penalty and several states have not yet adopted the increase in OSHA maximum penalties that Congress passed in 2016. And without any means other than the death penalty to force state plans into compliance, many states succeed in failing to live up to federal criteria.
If a state plan is not living up to its obligations, any citizen can file a Complaint Against a State Plan Administration (CASPA). Federal OSHA will then conduct an investigation, and issue conclusions and action items. Major CASPAs alleging serious deficiencies often take a long time to resolve, especially when the state resists the conclusions and recommendations of federal OSHA.
The Protecting American Workers Act, H.R. 2876, (PAWA), introduced by Congressman Joe Courtney (D-CT), would allow the Secretary of Labor to more easily assert concurrent enforcement authority in those states where the plan is fails to meet minimum requirements needed to protect workers’ safety and health. (PAWA would also mandate OSHA coverage of public employees in all 50 states.)