The Kentucky State Legislature is poised to pass legislation that will weaken health and safety protections for the state’s workers. If federal OSHA allows the state to get away with this action, it could signal a race to the bottom among OSHA state plan states that are controlled by Republicans.
Background
The Occupational Safety and Health Act allows states to run their own health and safety programs as long as those programs are “at least as effective” as the federal OSHA program. If OSHA approves a state program, the federal government funds 50% of the state’s administrative costs to run the program. The state is required to adopt standards identical to those issued by federal OSHA, but the state can adopt more effective standards or standard that federal OSHA doesn’t have. Some states have issued standards — like heat and workplace violence — that federal OSHA doesn’t have.
Twenty-one states and Puerto Rico have OSHA state plans where the state enforces OSHA standards in the private and public sector. Six additional states run “public employee only” programs where the federal government enforces OSHA standards for the private sector and the state covers the public sector.
If a state wants to issue a standard different than an existing federal standard, or a state wants to change its OSHA law, federal OSHA must approve of any changes to ensure that the standards and the overall program remain at least as effective as the federal program.
HB398: The Race to the Bottom
Last month, the Kentucky state assembly overwhelmingly passed HB398 largely on a party-line vote. The bill passed by a vote of 62-33, with 14 Republicans joining Democrats in opposing the legislation. The state Senate is poised to pass the bill today. The bill would significantly weaken protections for Kentucky workers.
How? Let me count the ways…
Standards
Federal OSHA permits states to issue standards that are more protective than federal standards. For example, many states currently have standards to protect workers against heat. Kentucky also has quite a few standards that exceed federal OSHA standards, including standards that provide protections for construction workers, fire department employees and workers exposed to toxic substances. For example, unlike federal OSHA, Kentucky requires fire departments to inspect and maintain vehicles, mandates safety harnesses for steelworkers and crane operators above 10 feet and ensures that employees are paid while accompanying an OSHA inspector during workplace safety inspections.
Unlike federal OSHA, Kentucky requires fire departments to inspect and maintain vehicles, mandates safety harnesses for steelworkers and crane operators above 10 feet and ensures that employees are paid while accompanying an OSHA inspector during workplace safety inspections.
In 2021, the Kentucky legislature passed a law prohibiting the state from adopting or issuing their own workplace safety rules that are more protective than those set by federal OSHA. But HB398 would prohibit the state from enforcing those standards currently on the books that are more stringent than federal OSHA standards. Advocates for the bill argue that this provision will prevent “overregulation.”
Penalties
The current law states that if a violation of a standard is identified by an KYOSHA inspector, the agency shall issue a civil monetary penalty. The new language changes the word shall” to “may,” making monetary penalties optional.
In addition, Kentucky is one of several states that has failed to raise its penalties after Congress required OSHA to raise its penalties in 2016 and index them to inflation. Consequently, the current maximum penalty for a serious violation is still only $7,000 and for a willful violation, $14,000. For federal OSHA the maximum for a serious violation is $16,131 per violation and $161,323 for a willful violation. Why OSHA continues to permit state plan states to apply outdated penalties is a mystery.
The new law would also establish a “de minimis violation” that “has no direct or immediate relationship to safety or health.” Citations for these “de minimis violations” would not carry a civil monetary penalty or be allowed to be considered for a repeat violation if the employer continues to ignore the law. These would include recordkeeping violations where the employer fails to record an injury or illness.
Worker Complaints
The bill also restricts workers’ ability to alert authorities about unsafe working conditions and file complaints. Whereas currently, employees can filed complaints if “reasonable grounds are believed to exist” for violations or hazards, the new language would require employees to provide specific “evidence” as if in a court of law before a complaint will be considered valid for an inspection. Workers would also have to list the exact date that the suspected violation occurred.
Kentucky OSHA officials will then determine if the evidence is adequate to justify an inspection.
In addition, instead of the employee’s representative filing a complaint, only a “qualified” representative may file an complaint. Currently, the definition of who can request such an inspection is broad and could potentially include an employee’s family, attorney or another representative.
What is a “qualified representative?”
According the bill, a “qualified representative” means “a person who is reasonably necessary to conduct an inspection based on their relevant scientific, technical, or specialized knowledge, skill, experience, training, or education.” In other words, technically trained individuals. Guess who decides whether a worker representative is qualified?
The purpose of this language change, according to the Kentucky Chamber of Commerce, is to prevent OSHA from being overwhelmed by frivolous complaints. This is exactly the opposite of the way OSHA operates because frivolous complaints are not really a problem. Currently, federal OSHA very rarely dismisses a worker complaint. Every signed complaint was inspected unless OSHA had absolute assurance that a hazard did not exist – which is nearly impossible. And worker complaints tend to find more hazards and more serious violations than non-complaint inspections.
Walkaround Representatives
One of the most important rights that workers gained from the Occupational Safety and Health Act was their right to walk around with OSHA inspectors during inspections. For most of OSHA’s history, this right has been interpreted to apply mostly to union workplaces where the authorized union rep can walk around with the OSHA inspector. Where there is no union, the law states that the inspector “shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.”
The Obama and Biden Administrations broadened that right to allow even non-union workers to choose their walkaround representatives as their presence is “reasonably necessary to ensure an effective and thorough inspection.” Business groups strongly opposed that expansion, arguing that it was just an undercover way for unions to organize workplaces.
The Kentucky bill heads the opposite direction, making it even more difficult for employee representatives to accompany inspectors. The bill’s language states that only “A qualified representative authorized by the employee may be given an opportunity to accompany” the inspector. [emphasis added.]
And whereas the representative of the employer shall accompany the inspector, an employee representative may accompany the inspector. Finally, whereas the current law states that in the absence of an authorized walkaround representative, the OSHA inspector shall consult with a reasonable number of employees, the new language give OSHA the option of consulting with other employees.
Retaliation
OSHA prohibits employers from discriminating or retaliating against workers for exercising their health and safety rights. But the federal law only gives workers a short 30 days to file a discrimination complaint, a period that is impractical for many workers. Most whistleblower law passed in recent years give workers far longer to file anti-discrimination complaints. The current Kentucky law gives workers 120 days to file a discrimination complaint. The new language would slash that time back to 30 days. The new bill also removes Kentucky OSHA’s option to provide temporary reinstatement pending the outcome of the whistleblower case, and reduces the damages available to wrongly fired whistleblowers from “all appropriate relief” to only being rehired with back pay.
The current Kentucky law gives workers 120 days to file a discrimination complaint. The new language would slash that time back to 30 days.
Abatement Date
An OSHA citation states that time the employer has to abate (or correct) the violation. The current law states that if the employer contests the citation, OSHA may extend the time required to abate the hazard. The new language states if the employer contests the violation, that the abatement date would automatically be postponed until the case is concluded, which could be months or years after the citation is issued.
Financial burdens on taxpayers
Following the issuance of a citation, employers are given 15 days to contest the violations. The new law would allows businesses that successfully appeal a workplace safety or health citation to request a financial award from the department for their expenses, including legal fees and court costs. This puts an financial burden on taxpayers and taxes the already limited resources of the state government.
What’s Next?
The Kentucky state Senate is expected to vote today on the bill. And it’s not too late to contact your state Senators to express your strong opposition.
Kentucky State AFL-CIO President Dustin Reinstedler warned that “House Bill 398 threatens to erase [workplace safety] protections overnight. This bill is not just an attack on workplace safety—it’s an attack on every working Kentuckian.”
If the state Senate passes the bill today, Governor Andy Beshear, a Democrat, can veto the bill. The state legislature, however, is controlled by Republicans and they have enough votes to override the veto as they did when the Legislature passed a bill in 2021 weakening the state OSHA program.
If the bill becomes law, federal OSHA will need to determine whether the state program remains “at least as effective” as the federal program. If federal OSHA determines that the Kentucky program is not “at least as effective,” it can begin the process of rescinding the state plan.
OSHA has never rescinded a state plan, although it began the process to rescind Arizona’s plan before the state elected a Democrat as governor who committed to addressing the state OSHA plans problems.
It seems obvious to anyone who knows anything about OSHA that if HB398 is passed, the state’s OSHA program would no longer be “at least as effective as” the federal program. But will the Trump administration take that requirement seriously?
It seems obvious to anyone who knows anything about OSHA that if HB398 is passed, the state’s OSHA program would no longer be “at least as effective as” the federal program. But will the Trump administration take that requirement seriously?
The bill has strong support from the Kentucky Chamber of Commerce, which calls the bill a necessary step “to ensure the Commonwealth remains competitive with other states while maintaining workplace safety.” State Rep. Walker Thomas, R-Hopkinsville, who introduced the bill, confirmed that HB398 is just a way to attract more business at the expense of workers lives: “To keep our businesses and attract new economic opportunities, legislators must follow through on the progress they have made in past sessions to ensure worker safety while also creating fair and more transparent rules for employers.”
If this bill becomes law and federal OSHA nevertheless allows the state plan to continue operating, we can expect other states to follow with similar — or worse — laws, weakening worker safety and health protections. What’s to stop states from competing in a rapidly accelerating race to the bottom as more states attempt to compete with their neighbors to lure business with weaker and weaker protections?
One final interesting note: Trump’s nominee to head federal OSHA, David Keeling, is a resident of Kentucky.
Stay tuned.