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Arizona Could Lose Worker Safety Oversight to Federal OSHA (1)

April 20, 2022, 12:45 PMUpdated: April 20, 2022, 1:10 PM

Arizona could lose its oversight of worker safety issues for private employers because of the state’s intransigence in adopting federal standards, the U.S. Occupational Safety and Health Administration announced Wednesday.

OSHA officials said the proposal to reconsider and revoke the state’s authority was based on Arizona’s pattern since at least 2014 of failing to “timely adopt and enforce standards and required directives” that were equal to or better than federal regulations and practices. Should federal OSHA carry through with its proposed revocation of the Arizona Division of Occupational Safety and Health’s approval to regulate worker safety and health, the federal agency would assume inspections of private employers in the state.

“Through this proposed revocation process, OSHA is asking Arizona OSHA to address the litany of issues that the agency has identified over the past decade,” Assistant Secretary of Labor for OSHA Douglas Parker said in a press briefing.

“We believe that waiting until OSHA issues another standard would simply provide Arizona with another opportunity to fail to protect workers in a timely manner,” he said.

Arizona would be the first state to involuntarily lose federal approval of its state plan if federal and state officials don’t reach a settlement. In some other states, federal OSHA and state authorities reached agreements where state and federal inspectors shared duties until a state plan met federal expectations.

Arizona is among 21 states and Puerto Rico that have plans approved by OSHA to oversee workplace safety at private workplaces as well as state and local government facilities.

Another five states and the Virgin Islands regulate only state and local government work sites. Federal OSHA handles private employer inspections in those jurisdictions.

A decision to withdraw approval of Arizona’s state plan could take at least several months to enact. OSHA’s rules for decertification of a state plan call for numerous comment opportunities, a hearing before an administrative law judge if requested, and two reviews by the assistant secretary of labor for OSHA.

The revocation proposal notice is scheduled to be published in Thursday’s Federal Register. According to the notice, OSHA will take written comments through May 26 and may hold an online hearing Aug. 16. People can request to participate in the hearing through May 11.

Four Strikes

OSHA cited four shortfalls of the Arizona program to justify revocation.

An Arizona construction safety rule enacted during the Obama administration didn’t require workers to use “conventional” fall protection unless they were 15 feet or higher above a surface. The federal threshold was six feet. Arizona adopted the federal limit in 2015 under threat of a federal takeover of construction inspections.

Arizona also failed to adopt federal OSHA’s new fine limits, first enacted in 2016, that raised maximum fines by more than 80% since 2015. An OSHA analysis of Arizona fines found that for fiscal year 2020, the average penalty for a serious violation was $1,376, while the average federal penalty was more than double that at $2,965.

The state additionally didn’t adopt the federal OSHA Covid-19 emergency temporary standard for the health-care industry that took effect June 21. All other state plans adopted the standard before OSHA announced Dec. 27 it was no longer enforcing the rule.

Arizona also didn’t adopt a version of federal emphasis programs focused on protecting workers from amputations, construction trenching accidents, and breathable silica dust.

(Updated to add comments from Douglas Parker and information from the Federal Register notice.)

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Laura D. Francis at lfrancis@bloomberglaw.com