Florida Tries to Secede from OSHA

Florida Governor Ron DeSantis has made no secret of his belief that any government (or employer or school district) that takes any action to curb COVID-19 transmission is an enemy of freedom, an enemy of America — and an enemy of Ron DeSantis for President.

Over the past several weeks, DeSantis has issued a series of executive orders that prohibit COVID-19 passports, prevent schools or local governments from closing or requiring vaccines, and banned schools from requiring masks.

So you can imagine that the Governor was no fan of OSHA’s recently issued standard that requires workers in companies of 100 or more employees to either be vaccinated or get tested weekly (and wear masks.)

Isn’t That Special!

To fight back against the Socialist Satan in the White House and “strike a blow for freedom,” DeSantis has invoked a special session of the Florida state legislature to defend “freedom” — Florida style. The Special Session is considering legislation that would :

prohibit private employers from mandating a COVID-19 vaccine with penalties that vary by business size. Small businesses, defined by those who have 99 employees or less, would face a $10,000 fine per employee violation. Medium and big businesses would face a $50,000 fine per employee violation.

One of the more pointless — yet upsetting — bills being considered are Senate Bill 6B/House Bill 5B that would appropriate $1 million for the Gov’s office to develop a proposal, by January 17, to secede from federal OSHA. Specifically, the study would look into the possibility of adopting an OSHA “State Plan.”

The Governors Office would receive $1 million to look into the possibility of adopting an OSHA “State Plan.”

Now, OSHA state plans are nothing new. 21 states (and Puerto Rico) have OSHA state plans. (An additional 5 states, and the Virgin Islands, have “public employee-only” programs.)

Most of the state programs were approved in the 1970s. OSHA must approve the state plan and then provide 50% of the funding. The OSHA state plans must run programs that are “at least as effective” as the federal OSHA program, and cover public employees, who are not covered by federal OSHA.

That Dog Don’t Hunt

But the Governor is in for a heaping helping of disappointment.  Florida is on the verge of spending $1 million of taxpayer money — and ruining the holidays of numerous state employees — only to figure out that developing a state plan isn’t going to help the Governor’s quest to be free from freedom-crushing federal OSHA standards.

I’m going to do the Florida legislature a favor and save state employees’ vacations. For far less than $1 million (except for what you want to put in the tip jar), I’m going to summarize the inevitable conclusions of the study in two words: “No Way.”

Here’s a clue. Check out paragraph 18(c)(2) of the Occupational Safety and Health Act which stipulates that state plans must issue (and enforce) standards that “at least as effective” as federal OSHA standards. That means that the state can issue as standard that is identical to the federal OSHA’s standard.

It’s not likely that federal OSHA would approve a state plan for Florida if the Governor declares that the purpose of the state plan is to issue standards that are weaker than federal OSHA’s.

Or State plans can issue a different standard, as long as it’s at least as effective (or more effective) than the federal standard.   And in case there’s any doubt about whether a standard is “at least as effective” or not, federal OSHAis the ultimate decider about whether the state standard is consistent with the law. A state plan may not choose to issue a weaker standard and may not choose to issue no standard.

And there are deadlines. Emergency standards must be adopted within a month after the feds issue their standard, and normal standard must be adopted by the state plans within 6 months.

So it’s not likely that federal OSHA would approve a state plan for Florida if the Governor declares that the purpose of the state plan is to issue standards that are weaker than federal OSHA’s.

Finally, Florida would have to set up a whole new bureaucracy and spend tens of millions of dollars to run a state OSHA program.  Because of the laws, funding, policies, staffing and infrastructure that has to be built before receiving federal approval, it normally takes several years from a state’s application to the time when federal OSHA grants permission for a state to run its own program. By that time (hopefully), COVID will have faded far into the rear view mirror.

(Ironically, Florida will have an especially difficult time creating the infrastructure to run a state OSHA program. Unlike most states, Florida has no Department of Labor. The Florida Department of Labor — along with a small office that policed public employee health and safety — was abolished by then-Governor Jeb Bush in the early 2000’s.)

Florida Knows Best

The main reasoning for the OSHA secession idea, according to Representative Adrian Zika, sponsor of the House bill, is that “Florida knows Florida better than Washington, D.C. will ever know Florida.”

In races to the bottom, workers come in last every time.

Maybe. So why would it be so bad if every state just ran its own personalized OSHA program free of federal dictatorship?

Because it invites a “race to the bottom.” And in races to the bottom, workers come in last every time.

Sure, every state can argue that it knows its own state better than the feds, and therefore should be setting and enforcing its own safety and health standards.

DeSantis may think that Florida workers don’t really need to comply with OSHA’s machine guarding standard because Florida workers are more careful about their limbs than workers in other states.  And anyway, if Florida standards are less strict that Georgia’s, Florida can attract more business from Georgia.

But then Georgia may decide that Florida’s weaker standards are stealing their business and set standards that are weaker than Florida’s. Meanwhile, South Carolina gets scared about losing jobs and announces it will simply stop enforcing the law or fining employers unless a worker gets killed.

Workplace hazards do not recognize state lines.

You get the idea. The winners here will be unsafe businesses and Governors who want to run for President.  And the losers are workers who will get hurt and die in states with weaker OSHA programs.  Florida workers are no less likely to die falling off of a high roof, or getting crushed in a deep trench or having their arm ripped off in an unguarded  machine — or getting COVID in the workplace — than workers in Georgia or South Carolina or Oregon. Workplace hazards do not recognize state lines.

In fact, the Occupational Safety and Health Act was passed in 1970 specifically to prevent states from competing with each other over the bodies of workers — “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions” — no matter what side of a state line they live on.

Florida OSHA Would Expand Coverage to Public Employees

Ironically, creation of a Florida state OSHA plan would actually expand coverage of workers in Florida. Federal OSHA doesn’t cover public employees, so currently Florida state, county and city workers aren’t covered by OSHA and have no legal right to a safe workplace.

But state plan states are required to cover public employees. So if Florida ends up adopting a state OSHA program, Florida public employees would be covered by all OSHA standards — including federal OSHA’s Vax-or-Test standard (assuming it’s still in effect many years from now when the hypothetical Florida state plan is created.)

OSHA Means Business

The requirement that state plan states issue and enforce standards that are at least as effective as federal OSHA standards is a requirement that federal OSHA takes seriously.

Last month, OSHA announced that it was launching proceedings to revoke that state plans of South Carolina, Utah and Arizona because they had refused to adopt OSHA’s COVID-19 Emergency Temporary Standard for health care workers that was issued in June.

South Carolina recently surrendered and announced that it would adopt the federal standard. In fact, history shows that when Federal OSHA threatens to march into a state plan that’s openly defying federal OSHA, the state’s business community forces the resistant Governor or legislators to back down. As much as the business community hates enforcement of health and safety standards in general, they hate the feds even more than they hate state authorities.  State authorities are much easier to lobby than the feds.

The Arizona Lesson

What happens with the current standard remains to be seen. States have one month to adopt a federal emergency standard after the Feds publish the standard. (That deadline may change, however, because the standard has been  temporarily stayed by the 5th Circuit Court of Appeals.)

South Carolina Governor has pledged to fight OSHA to the Gates of Hell. We’ll see.

Arizona seems to be on the same track, unless Arizona officials update themselves on the requirements of the Occupational Safety and Heath Act.

Shortly after the federal standard was issued, the Arizona Industrial Commission issued the following statement:

Arizona is one of 22 OSHA-approved state plans that have exclusive responsibility for the development and enforcement of occupational safety and health standards within their states….Under Arizona’s long-approved state-plan procedures, the Industrial Commission has exclusive authority to decide if, when, and to what extent the State of Arizona will adopt the OSHA vaccination ETS….Until such time that the Industrial Commission takes formal action to adopt all or part of the vaccination ETS, however, the temporary standards are not binding or enforceable against Arizona’s private and public sector employers and employees.

Well, no. Arizona actually does not have “exclusive responsibility” for developing or enforcing standards. Nor does the Industrial Commission have “exclusive authority” to decide if, when, and to what extent the State of Arizona will adopt the OSHA vaccination ETS.  Federal OSHA gets to decide what standards are developed.  And federal OSHA gets to set the deadlines.

Arizona should know better. During the Obama administration, Arizona OSHA fought (and lost) a battle against enforcing federal residential fall protection requirements. Federal OSHA was on the verge of taking over Arizona’s construction sector when the state backed down and agreed to enforce the requirements.

This is likely to be déjà vu all over again.

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P.S. You can listen to me discuss this issue Melissa Ross at First Coast Connect here.

(Note: This post was expanded after initial publication to add the “Florida OSHA Would Expand Coverage to Public Employees” section.)

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