South Carolina is the latest state to be embroiled in a fight over its power to enforce worker safety protections, following a union’s bid for federal regulators to step in and wrest control from the Palmetto State.
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An affiliate of the Service Employees International Union in early December asked OSHA to revoke its approval of South Carolina’s program on the grounds it isn’t meeting its obligations to protect workers. The state has defended its performance, citing US Bureau of Labor Statistics data showing only three states had lower injury and illness rates than South Carolina’s 2.3 cases for every 100 full-time workers.
The dispute adds to existing friction between OSHA and South Carolina, which is challenging the federal agency’s authority to set fine maximums and minimums for state inspectors. It also sets up what could be a lengthy administrative battle that may eventually reach federal courts.
1. How are state OSHAs formed?
States that want their own program need to pass a years-long review by federal OSHA, explaining how the safety agency will be managed, how rules will be adopted, and how employers can appeal citations to state panels or courts.
Twenty-six of the current state plans earned their initial approval by 1978. Other states with OSHA’s backing include California, Michigan, Wyoming, and Tennessee.
In the past decade, Florida and Kansas lawmakers considered establishing state plans, but dropped the idea because the states would have to pay much of the program’s expenses.
2. What triggers the start of revocation?
Federal law says OSHA can launch a takeover of a state worker safety program if it isn’t “at least as effective as” the federal agency.
OSHA conducts annual reviews of each state plan and finds problems in all. Some common issues include state agencies losing experienced staff members, and paying lower wages than the private sector.
States have also been flagged for worker safety budget allocations failing to keep pace with inflation—a criticism also levied at federal OSHA, which is supposed to pay half of a state’s enforcement costs.
3. Has this happened before?
Past disputes over authority typically dealt with what OSHA viewed as a state deliberately and systematically ignoring new federal rules.
For example, in 2013, OSHA threatened to take over construction inspections in Arizona after the state legislature approved a fall protection rule that raised the height at which employees could work without wearing protective gear.
And in 2021, OSHA again targeted Arizona after the state didn’t adopt the federal rule intended to protect health-care workers from Covid-19 and several other OSHA enforcement efforts.
In both cases, Arizona officials approved measures sought by OSHA before the revocation reached a judge.
4. What’s the revocation process?
Once OSHA officials believe decertification is warranted, the agency must give the state plan 45 days to “show cause” why a formal proceeding for withdrawal of approval shouldn’t begin.
If the state requests a formal review and hearing, OSHA’s next step is to post a notice in the Federal Register for public comment.
If OSHA and the state don’t reach a settlement, a federal administrative law judge would be assigned to the case. There could be evidence discovery and deposition of witnesses before a hearing begins.
After the ALJ rules, either party can appeal the decision to the secretary of labor, whose conclusion can then be appealed to a federal circuit court with jurisdiction over the state. For South Carolina, for example, that would be the US Court of Appeals for the Fourth Circuit.
5. What happens if OSHA wins?
Even if approval is revoked, OSHA’s enforcement staff of more than 1,000 inspectors and field managers is already spread thin and doesn’t have the capacity to suddenly take on responsibilities in a state with millions of workers.
The closure of a state plan would also leave local and state government workers without safety protections because federal OSHA doesn’t have jurisdiction over those government employees.
Ideally, OSHA and the state would work out a deal before a judge issues a decision.
6. Alternatively, what would a settlement look like?
Rather than removing the state program altogether, OSHA would be more likely to negotiate a deal with the state that would have state inspectors continue working while OSHA provides oversight and perhaps assigns a few federal inspectors who also act as trainers.
That’s what happened in Hawaii in 2012, when OSHA temporarily assigned four additional inspectors to the state and assumed responsibility for checking factories, chemical plants, and other general industry employers. OSHA phased out its involvement by the close of 2015.
Reaching a deal could also be advantageous to employers who likely would prefer to keep the state plan and rules they are familiar with rather than face the unknowns of federal inspections.
Read More:
- Union Asks OSHA To Strip South Carolina Of Job Safety Powers
- Arizona Could Lose Worker Safety Oversight To Federal OSHA
- Federal OSHA Rejects Sanctions For Arizona Job Safety Program
- South Carolina Makes Second Attempt To Overturn OSHA Fine Levels
- Hawaii Safety Agency Resumes Inspections of Manufacturers as OSHA Role Winds Down
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