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OSHA Warns States Slow to Adopt Health-Care Covid-19 Rule (1)

Oct. 19, 2021, 8:31 PMUpdated: Oct. 19, 2021, 9:45 PM

Federal OSHA is warning Arizona, South Carolina, and Utah that they risk a federal takeover of their worker safety programs unless they adopt a federal standard protecting health-care workers from Covid-19.

Of the 21 states with worker safety agencies approved by the U.S. Occupational Safety and Health Administration, the three states were the only ones that didn’t adopt the federal standard or their own version after it was issued June 21, Jim Frederick, OSHA’s acting administrator, said Tuesday during a press conference.

The announcement comes as OSHA is rushing to complete an emergency temporary standard mandating employers with 100 or more employees require workers to be vaccinated or tested at least weekly.

Attorneys general and governors for several states have vowed to fight the shot-or-test mandate.

Frederick and U.S. Department of Labor Solicitor Seema Nanda said Tuesday that it hasn’t been determined whether OSHA will seek to decertify the state plans or propose lesser actions.

Surprised Arizona

OSHA has been in contact with the states since the release of the health-care emergency temporary standard, Frederick said. On Tuesday, OSHA sent the state agencies a “courtesy letter” informing them that OSHA was beginning the decertification process. The next step is publication of an official notice for each state in the Federal Register and the start of a 35-day comment period.

If the full decertification process plays out, there could be a hearing for each state before an administrative law judge and a final decision on decertification by the assistant secretary of labor for OSHA. That decision could be appealed to a federal circuit appeals court.

Trevor Laky, chief of legislative affairs for the Industrial Commission of Arizona which oversees Arizona OSHA, told Bloomberg Law Tuesday that officials there were surprised by the federal action.

“We’ve been working in good faith with federal OSHA. We’ve begun the rulemaking process,” he said.

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Arizona wrote federal OSHA July 16 about changes the state wanted to make to its version of the rule so that it didn’t duplicate other Arizona regulations, Laky said, However, the state didn’t get a response from OSHA until Sept. 16 that the changes weren’t acceptable.

Arizona notified the federal agency on Sept. 21 that it was moving forward with the standard, Laky said.

Tennessee Tension

Tennessee’s workplace safety agency could be next to attract negative attention from the federal OSHA over its Covid-19 emergency standard for health-care employers.

A state legislative committee voted Oct. 18 to recommend that the Tennessee Department of Labor and Workforce Development rescind the emergency health-care rule it issued in August. Republican committee members say they oppose mask mandates and the differential treatment of vaccinated versus unvaccinated employees in the rule, and harbor concerns about paid time off requirements for employees who need to quarantine.

The agency is considering the legislature’s recommendation, state agency spokesman Chris Cannon said Tuesday.

For an emergency temporary standard, each state plan has just 30 days to enact the new requirement and must notify OSHA of its intent within 15 days of the rule’s official release, according to the 1970 federal law that created OSHA, the Occupational Safety and Health Act.

(Updated to add Arizona response, information on Tennessee rule repeal effort.)

To contact the reporters on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com; Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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