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Some States Could Stymie Enforcement of OSHA’s Shot-or-Test Rule

Oct. 19, 2021, 9:30 AM

If and when federal OSHA enacts its national Covid-19 shot-or-test requirement, some state governments opposing that mandate could stave off for months the enforcement of its requirements.

That’s because the federal Occupational Safety and Health Administration allows the governments of 26 states, Puerto Rico, and the U.S. Virgin Islands to adopt and enforce their own workplace safety and health rules for private-industry or state and local government workers.

Those states include Alaska, Arizona, Indiana, Kentucky, South Carolina, Utah, and Wyoming—all states where Republican attorneys general have vowed to sue over the OSHA standard if it is enacted. Right now the proposed measure is parked at the White House’s Office of Information and Regulatory Affairs while the administration meets with stakeholders seeking input before the rule’s release.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

“Regardless, when OSHA issues the vaccine mandate, we plan to challenge it in the Seventh Circuit,” Indiana Attorney General Todd Rokita told Bloomberg Law in a written statement, referencing the regional federal court of appeals based in Chicago.

The standard, as outlined Sept. 9 in a White House policy paper, would impose on all businesses with 100 or more workers a requirement to ensure all workers are either inoculated against the virus, or tested for it at least weekly.

Beyond OSHA’s Powers

In a Sept. 26 letter to President Joe Biden, 24 Republican attorneys general collectively called the proposal “disastrous and counterproductive.” They also said a vaccination emergency temporary standard was beyond federal OSHA’s workplace health enforcement powers. OSHA deals with “work related-hazards, not all hazards one might encounter anywhere in the world,” they said.

The attorneys general also said the threat from Covid-19 didn’t meet the “grave danger” threshold needed for OSHA to justify an emergency temporary standard. Texas and Arkansas have already taken steps to foil the promised federal rule.

Beyond Puerto Rico and the 21 states granted special dispensation to make their own rules, another five states—Connecticut, New York, New Jersey, Illinois, and Maine —and the Virgin Islands have worker safety plans covering only state and local government workers, leaving private employers there vulnerable to OSHA’s mandate. All five states’ attorneys general are Democrats.

No release date for it has been announced. But, when federal OSHA enacts a new rule, state workplace safety agencies are required by federal law to adopt the U.S. rule or enact a measure of their own that is “at least as effective” as the federal mandate.

“States can do more, but they can’t do less,” said Terri Gerstein, director of the Harvard University Labor and Worklife Program’s State and Local Enforcement Project.

30 Days to Enact

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.

Federal OSHA could take legal action against a state that fails to enact a vaccination standard that is at least as effective as the U.S. standard. The federal agency could decertify the entire state plan or take over specific parts of the state agency’s missions, such as enforcement.

If the national OSHA on its own doesn’t mandate compliance, anyone can file a complaint with the federal government, triggering a review of the state plan, said Martin Malin, professor emeritus at the Chicago-Kent College of Law.

But OSHA’s power to force a state or states to comply is blunted by the slowness of that process.

“The problem with it, is that it can take years,” said Jordan Barab, who served during the Obama administration as an OSHA deputy assistant secretary.

The procedure outlined in OSHA regulations includes formal notices, a comment period, a hearing before an administrative judge, a review by the secretary of labor, and if the secretary’s decision is challenged, consideration by a federal appeals court.

During his time at OSHA, Barab recalled, the agency spent more than year tussling with Arizona over a construction fall protection rule that federal officials believed offered less protection than a federal regulation.

Tying it to Funding

OSHA threatened to take over construction inspections in the state if the state rule wasn’t changed, Barab said. The dispute ended before the U.S. safety agency sent in its own inspectors when Arizona adopted the protections federal officials wanted, Barab said.

One other possible option, Barab said, is for OSHA to make funding a state plan dependent on the adoption of a vaccination and testing standard. State plans depend on OSHA to provide up to half of a state plan’s enforcement budget, about $108 million annually in recent years.

OSHA considered penalizing the Virgin Islands during his tenure, Barab said, but the dispute was resolved before funding was cut.

In the real world, deadlines for states to adopt federal OSHA rules are often missed with little consequence for the state agencies.

Most recently, OSHA on June 21 enacted a Covid-19 emergency temporary standard for health-care employers. Every corresponding state agency except for South Carolina agreed to implement the standard. South Carolina officials said the state would adopt its own rule and as of Monday its state rule was still a work in progress.

Federal OSHA has declined several times requests from Bloomberg Law to discuss what actions it is taking to ensure South Carolina’s compliance. The state hasn’t commented on the standard’s progress since announcing its intentions July 20.

In another example, federal OSHA raised its maximum fines by 79% in 2016 and has annually adjusted the maximums each year to keep pace with inflation. Many states have been slow to update their penalties, but OSHA hasn’t taken administrative action against any of them.

Even states considered to have strong programs can be at odds with federal OSHA.

Starting in 2013, the U.S. agency told state plans their construction fall prevention regulations needed to require the use of protective gear such as tethered harnesses whenever workers were more than 6 feet above a surface. Eight years later, the California Occupational Safety and Health Standards Board is still considering the change.

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

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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